I 

L  a^-OS ^    o  t"ojC  ,    ^L- 

THE  LAW  OF  CIVIL  PROCEDURE 


IN   FORCE   IN 


PANAMA  AND  THE  CANAL  ZONE 


TRANSLATED   BY 

FRANK  L.  JOANNINI 


ISTHMIAN    CANAL    COMMISSION 

WASHINGTON,  D.   C. 

JULY,    1905 


LWMT, 

JAN  23  1942 

TABLE  OF  CONTENTS. 


PAGE. 

BOOK  SECOND i 

TITLE  I. — CIVIL  PROCEEDINGS  IN  GENERAL i 

'"A 

Chapter  i. — Definitions  and  Preliminary  Provisions i 

Chapter  2, — Complaint  in  general 3 

Chapter  3. — Complainant  and  defendant  in  general 10 

Chapter  4. — Attorneys  in  Fact 15 

Seventeenth  Amendment  (Of  Law  53  of  1882) 16 

Sixteenth  Amendment  (Of  Law  53  of  1882) 17 

Fourth  Amendment  (Of  Law  46  of  1876) 18 

Third  Amendment  (Of  Law  53  of  1882) 2O 

Chapter  5. — Accessory  Actions  of  the  Complainant 24 

§  i .  Attachment  of  Persons  (Arraigo) 24 

§  2.  Deposit  or  Sequestration 26 

§  3 .  Exhibitory  Action 30 

§  4.  Assent  (Asentamiento) 31 

§  5.  Proof  in  Default 32 

§  6.  Suspension 33 

Chapter  6. — Notifications  and  Citations 34 

Fifth  Amendment  (Of  Law  46  of  1876) 34 

Fifth  Amendment  (Of  Law  53  of  1882) 37 

Sixth  Amendment  (Of  Law  46  of  1876) 41 

Chapter  7. — Interrogatories  (Posiciones) 43 

Seventh  Amendment  (Of  Law  46  of  1876) 44 

Chapter  8. — Exceptions  49 

Chapter  9. — Judicial  Proceedings  (Actuacion) 54 

Ninth  Amendment  (Of  Law  53  of  1882) 57 

Chapter  10. — Periods  of  Time 59 

Chapter  1 1 . — Delivery  of  the  Records  and  Remedies  Against 

Those  Who  Do  Not  Return  Them 63 

Chapter  12. — Transmission  of  Records 66 


IV 

PAGE. 

TITLE  II. — EVIDENCE  IN  CIVIL  MATTERS 68 

Chapter  i . — Definitions  and  General  Rules 68 

Eighth  Amendment  (Of  Law  46  of  1876) .  .  > 70 

Ninth  Amendment  (Of  Law  46  of  1876) 70 

Chapter  2. — Confession  of  the  Party 71 

Chapter  3. — Presumption  of  Law 74 

Chapter  4. — Indications  and  Conjectures 76 

Chapter  5. — Witnesses 77 

Twelfth  Amendment  (Of  Law  53  of  1882) 84 

Thirteenth  Amendment  (Of  Law  53  of  1882) 85 

Fourteenth  Amendment  (Of  Law  53  of  1882) 85 

Tenth  Amendment  (Of  Law  46  of  1876) 87 

Chapter  6.— Experts 88 

Eleventh  Amendment  (Of  Law  46  of  1876) 90 

Twelfth  Amendment  (Of  Law  46  of  1876) 91 

Chapter  7. — Public  or  Authentic  Instruments 93 

Thirteenth  Amendment  (O'f  Law  46  of  1876) 94 

Tenth  Amendment  (Of  Law  53  of  1882) 95 

Eleventh  Amendment  (Of  Law  53  of  1882) 95 

Chapter  8. — Private  Documents 97 

Chapter  9. — Provisions  Common  to  the  two  Preceding  Chap- 
ters   99 

Fourteenth  Amendment  (Of  Law  46  of  1876) 99 

Fifteenth  Amendment  (Of  Law  46  of  1876) 99 

Chapter  10. — Ocular  Inspection  103 

Chapter  1 1. — Special  Proofs  in  Commercial  Affairs 105 

TITLE  III. — INCIDENTAL  ISSUES  IN  CIVIL  ACTION 107 

Chapter  i : 107 

Sixteenth  Amendment  (Of  Law  46  of  1876) 107 

Chapter  2. — Impediments  and  Rccusations 108 

Chapter  3.— Competencies i  i  .s 

Chapter  4. — Consolidations  of  Actions 117 

Chapter  5.— Searches 121 

Chapter  6. — Desistance  

TITLE   IV.— FIRST  AND    LAST  CHAPTER,    DECISIONS  AND  JUDG- 
MENTS .                                          ^26 


PAGE. 
TITLE  V. — FIRST  AND  LAST  CHAPTER,  COSTS 133 

TITLE  VI. — FIRST   AND    LAST   CHAPTER,    EXECUTION   OF   JUDG- 
MENTS   ' i38 

TITLE  VII. — APPEALS  AND  WRITS  OF  CERTIORARI  (APELACIONES 

Y  RECURSOS  DE  HECHO) 142 

Chapter  i. — Appeals 142 

Seventeenth  Amendment  (Of  Law  46  of  1876) 142 

Eighteenth  Amendment  (Of  Law  46  of  1876) 143 

Chapter  2. — Writs  of  Certiorari  (Recursos  de  Hecho) 146 

TITLE  VIII. — FIRST  AND  LAST  CHAPTER,  NULLITIES 150 

Nineteenth  Amendment  (Of  Law  46  of  1876) 150 

Sixth  Amendment  (Of  Law  53  of  1882) 152 

Seventh  Amendment  (Of  Law  53  of  1882) 153 

TITLE  IX. — ORDINARY  ACTIONS 159 

Chapter  i. — First  Instance  . 159 

Twentieth  Amendment  (Of  Law  46  of  1876) 159 

Twenty-first  Amendment  (Of  Law  46  of  1876) 159 

Twenty-second  Amendment  (Of  Law  46  of  1876) 160 

Twenty-third  Amendment  (Of  Law  46  of  1876) 161 

Twenty-fourth  Amendment  (Of  Law  46  of  1876) 163 

Twenty-fifth  Amendment  (Of  Law  46  of  1876) 164 

Twenty-sixth  Amendment  (Of  Law  46  of  1876) 164 

Twenty-seventh  Amendment  (Of  Law  46  of  1876) 167 

Twenty-eighth  Amendment  (Of  Law  46  of  1876) 168 

Chapter  2. — Second  Instance 168 

Eighth  Amendment  (Of  Law  53  of  1882) 169 

TITLE  X. — ORDINARY  ACTIONS  UPON  PRIVATE  INTERESTS 173 

Chapter  i. — Preliminary  Provisions 173 

Chapter  2. — Ordinary  Actions  upon  a  Complaint  of  Lesser 

Import 173 

TITLE  XI. — SPECIAL  ACTIONS 179 

Chapter  i 179 

First  Section.     Executory  Actions .  .' 179 

Thirtieth  Amendment  (Of  Law  46  of  1876) 179 

Thirty-first  Amendment  (Of  Law  46  of  1876) 181 


VI 

PAGE, 

Thirty-second  Amendment  (Of  Law  46  of  1876) 185 

Thirty- third  Amendment  (Of  Law  46  of  1876) 188 

Thirty-fourth  Amendment  (Of  Law  46  of  1876) 205 

Thirty-fifth  Amendment  (Of  Law  46  of  1876) 206 

Second  Section.     Execution  by  Coercive  Jurisdiction 208 

Third  Section.     Provisions  Supplementary  to  the  two  Pre- 
ceding Sections 210 

Fourth  Section.     Intervention  in  Executory  Actions 212 

Chapter  2. — Bankruptcy  Proceedings 220 

Thirty- sixth  Amendment  (Of  Law  46  of  1876) 236 

Chapter  3. — Proceedings  Relative  to  Successions  Mortis  Causa  237 
First  Section.     Opening  and  Publication  of  Testaments.  .  .  .  237 
Second  Section.     Judicial  Measures  to  Prevent  the  Misplace- 
ment or  the  Loss  of  Hereditary  Property 240 

Third  Section.     Petition  of  Inheritance .  243 

Fourth  Section.     Inventories  and  Appraisements 245 

Thirty-seventh  Amendment  (Of  Law  46  of  1876) 247 

Fifth  Section.     Partition  of  the  Property  of  the  Succession .  .  252 

Chapter    4. — Division  of  Common  Property "...  256 

Chapter    5.— Surveys  and  Demarcations  of  Tenements 259 

Chapter    6. — Possessory  Actions 261 

Chapter    7. — Denunciation  of  a  New  Work 264 

Chapter    8. — Denunciation  of  New  Works 266 

Chapter    9. — Expropriation  Proceedings 268 

Chapter  10. — Suits  for  Accounting 268 

Chapter  1 1. — Denunciation  of  Mines 270 

Chapter  12. — Vacant  and  Unclaimed  Property 270 

Chapter  13. — Divorce  and  Annulment  of  Marriage 273 

Chapter  14. — Emancipation  of  Children 275 

Chapter  15. — Qualification  as  to  Age  (Habilitacion  de  Edad) .  276 

Chapter  16. — Maintenance 277 

Chapter  17. — Appointment  and  Removal  of  Guardians 278 

Chapter  18. — Judicial  Interdiction 281 

Chapter  19. — Judicial  Interdiction  in  the  Administration  of 

Guardians  .                         283 

Chapter  20. — Religious  Foundations  (Capcllanias) 284 


Vll 

PAGE. 
TITLE  XII. — FIRST  AND  LAST  CHAPTER,  SUMMARY  PROCEEDINGS 

IN  GENERAL 286 

TITLE  XIII. — FIRST   AND   LAST  CHAPTER,    PRIVILEGES   OF   THE 

NATION  IN  REGARD  TO  PROCEDURE 287 

TITLE  XIV. — FIRST  AND  LAST  CHAPTER,  MISCELLANEOUS  PRO- 
VISIONS . .  288 


BOOK  SECOND. 
CIVIL    PROCEDURE.* 

(The  figures  following  articles  refer  to  the  respective  ordinal  numbers.) 

TITLE  I. 

Civil  Proceeding's  iii  General. 

CHAPTER  i. 
Definitions  and  Preliminary  Provisions. 

i),  ART.  254.  The  object  of  a  civil  action  (juicio  civil)  is  to  decide 
the  controversies  arising  on  rights  conferred  by  the  substantive  law. 

2).  ART.  255.  The  words  cause  (causa),  suit  (pleito)  and  action 
(juicio)  have  the  same  signification. 

3).  ART.  256.  Civil  actions  are  divided  into  ordinary  and  special. 
Ordinary  are  those  in  which  the  general  rules  of  procedure  are  followed ; 
and  special,  those  conducted  in  a  special  manner. 

839  et  seq.,  957  et  seq. 

4).  ART.  257.  The  process  is  the  written  history  of  a  judicial  contro- 
versy, from  the  petition  or  complaint  (demanda)  to  the  judgment, 
inclusive. 

362. 

5).  ART.  258.  Instance  is  called  the  exercise  of  the  action  in  each 
of  the  degrees  of  the  proceedings.  There  are  but  two  instances:  the 
first,  is  the  proceeding  before  the  inferior  judge;  and  the  second,  that 
before  the  superior  Judge  or  Tribunal,  by  appeal  or  for  consultation. 

Supplemented  by  the  following  article : 

*  Article  i  of  Law  57  of  1887,  adopted  for  the  Unitarian  Republic  of  Colombia,  the 
Judicial  Code  which  had  been  in  force  for  the  said  nation  under  the  federal  form. 
This  Code  consisted  of  three  books,  of  which  the  first  was  subsequently  repealed  by 
article  230  of  the  Code  of  Organization.  The  latter  subrogated  the  First  Book  re- 
ferred to.  The  Second  and  Third  Books,  now  published,  are  those  of  the  Judicial 
Code  adopted.  As  in  the  first  edition  of  this  Code,  made  under  the  new  regime,  the 
order  of  the  articles  was  changed,  by  reason  of  the  incorporation  in  Book  I  of  the 
articles  of  Law  61  of  1886,  which  subrogate  those  of  said  Book  which  were  repealed, 
and  the  incorporation  also  in  the  other  Books  of  the  amendatory  provisions  contained 
in  Laws  46  of  1876  and  53  of  1881,  the  first  article  of  this  second  Book  bore  No.  254 
in  said  first  edition,  which  number  is  retained.  The  number  of  this  article  in  the  Code 
adopted  was  189. 


6).  ART.  333  of  Law  105  of  1890.  An  action  is  exercised  in  first 
instance  from  the  moment  the  complaint  is  filed  or  a  declaration  is  made 
that  criminal  proceedings  lie  according  as  to  whether  the  matter  is  a 
civil  or  a  criminal  one,  until  the  definitive  decision  of  the  Judge  or  Magis- 
trate before  whom  the  complaint  is  made  or  the  criminal  trial  held, 
becomes  absolute,  or  until  the  beginning  of  the  exercise  of  the  second 
instance,  when  the  latter  is  exercised.  The  *;ame  action  is  exercised  at 
second  instance,  from  the  time  the  decision  granting  an  appeal  from  said 
definitive  judgment  becomes  absolute,  or  from  the  time  an  order  is  made 
that  the  matter  be  submitted  for  consultation  to  the  respective  superior, 
until  the  latter  having  pronounced  definitive  judgment,  the  jurisdiction 
in  the  superior  court  terminates. 

7).  ART.  259.  A  reference  (traslado}  is  the  information  given  one 
of  the  parties  of  the  petitions,  evidence  or  claims  of  the  other,  in  order 
that  said  party  may  make  answer  or  propose  what  may  be  proper  with 
regard  to  either. 

The  reference  is  effected  by  notifying  the  respective  party  of  the  de- 
cree ordering  it  made,  and  placing  at  his  disposal,  for  the  term  which 
the  law  or  the  Judge  may  designate  for  answer  thereto,  the  record  or  that 
part  thereof  affected  by  the  reference.  The  term  of  such  reference  can- 
not exceed  six  days  in  any  case. 

Expressly  derogated  by  article  338  of  Law  105  of  1890,  and  subro- 
gated  by  the  following : 

8).  ART.  i  of  Law  105  of  1890.  A  reference  (traslado)  is  the  infor- 
mation given  to  one  of  the  parties  of  the  petitions,  evidence  or  claims 
of  the  other,  in  order  that  said  party  may  make  answer  or  propose  what 
may  be  proper  with  regard  to  either. 

The  reference  is  effected  by  notifying  the  respective  party  of  the  decree 
ordering  it  made,  and  placing  at  his  disposal,  for  the  term  which  the  law, 
or  the  Judge  in  its  absence,  may  fix  within  which  to  make  answer  thereto, 
the  record  or  the  part  thereof  affected  by  the  reference. 

This  circumstance  shall  be  clearly  stated  in  the  notice.  The  term  of 
the  reference  cannot  exceed  six  days  in  any  case.* 

195,  197,  201,  844,  845,  854. to  857. 

9).  ART.  260.  The  litigant  or  group  of  litigants  adducing  tlu  saim 
claims  in  an  action,  is  called  a  party. 

52,  53,  217,  218,  729. 

10).  ART.  261.  In  the  absence  of  any  other  general  or  sprcial  nik-, 
any  deficiency  in  the  procedure  shall  be  supplied  according  to  the  pm 
visions  of  this  Code  for  similar  cases. 

*  Tin-  ic|>icsrnt:ilivc  of  t  IK-  "  Mont  rj.io  "  is  cutitlrd  in  double  tin-  trims  pivsu  ilu-il 
for  rcfcrcn  Article  is.  subdivision  j.  of  I.;iw  153  ofl 


n).  ART.  262.  The  provisions  of  this  title  shall  be  applicable  to  all 
civil  actions,  in  so  far  as  their  nature  permits,  reserving  always  any 
special  provision  which  modifies  or  repeals  that  of  a  general  character 


CHAPTER  3. 
Complaint  in  General. 

12).  ART.  263.  A  complaint  (demanda)  is  the  petition  addressed  to 
a  Judge  requesting  that  he  order  an  obligation  enforced. 

13).  ART.  264.  There  is  no  difference  between  complaints  by  reason 
of  the  amount  involved,  when  affairs  in  which  the  Nation  has  an  interest 
are  in  question. 

The  three  following  articles  are  additional : 

14).  ART.  2  of  Law  105  of  1890.  In  suits  between  private  individ- 
uals, the  complaints  are  of  greater  or  lesser  import.  The  former  are 
those  in  which  the  interest  involved  is  of  three  hundred  pesos  or  more. 
The  latter,  those  in  which  the  interest  involved  is  under  three  hundred 
pesos. 

This  is  without  prejudice  to  the  provisions  of  the  laws  relating  to  the 
Code  of  Judicial  Organization.* 

15).  ART.  3  of  Law '105  of  1890.  The  interest  is  considered  the 
total  liquidated  amount  sued  for,  expressed  by  a  determinate  figure. 

If  with  the  liquidated  sum,  one  that  shall  not  have  been  liquidated  is 
sought  to  be  recovered,  and  if  together,  it  shall  be  clearly  evident  that 
they  form  an  interest  of  three  hundred  pesos  or  more,  the  complaint 
shall  be  of  greater  import. 

963,  968. 

1 6).  ART.  4  of  Law  105  of  1890.  In  order  to  determine  the  amount, 
in  suits  which  do  not  involve  a  known  amount,  the  plaintiff  shall  fix  it 
in  the  complaint;  but  the  defendant  may,  before  making  any  answer 
object  to  the  amount  fixed  by  the  defendant,  and  in  such  case  the 
amount  shall  be  determined  by  experts,  to  be  appointed  by  the  Judge. 

-17).  ART.  265.  The  writ  of  complaint  or  petition  must  contain  the 
designation  of  the  Judge  to  whom  it  is  addressed,  the  name  of  the  plain- 
tiff, stating  whether  he  sues  in  his  own  name  or  on  behalf  of  another, 
and  his  nationality  or  residence ;  the  defendant  and  his  nationality  and 
residence,  if  known;  the  thing,  amount  or  act,  the  subject  of  the  action 


*  In  the  Code  of  Organization,  Book  I  of  this  Code,  article  of  order  '167  establishes 
an  exception  to  this  rule,  in  that  it  provides  that  the  Municipal  Judges  of  the  seats  of 
Judicial  Districts  take  cognizance  of  certain  actions,  when  the  amount  involved  does 
not  exceed  five  hundred  pesos. 


clearly  expressed  in  accordance  with  the  provisions  of  this  Code,  and 
the  right,  cause  or  reason  the  basis  of  the  suit. 

36  to  41,  842. 

1 8).  ART.  266.  If  the  complaint  should  not  be  in  legal  form,  the 
Judge  shall  return  it  to  the  plaintiff  the  same  day  of  its  presentation,  in 
order  that  he  may  cure  the  defects,  which  shall  be  indicated  as  clearly 
as  possible  by  the  Judge.  This  is  understood  to  be. without  prejudice 
to  the  right  of  the  defendant  to  demur  in  the  said  case  (sin  perjuicio  de  la 
excepcidn  de  inepta  demanda). 

843- 

19).  ART.  267.  The  plaintiff  shall  present,  with  the  complaint,  the 
instruments  or  documents  cited  therein  as  a  basis  for  his  intention,  if 
they  be  in  his  possession. 

840,  841,  859,  860,  1373. 

20).  ART.  268.  The  complaint  may  be  explained,  corrected  and 
amended  by  the  plaintiff,  any  time  before  notice  of  the  order  directing 
the  taking  of  evidence ;  and  in  such  case  the  Judge  shall  again  refer,  for 
the  ordinary  term,  the  explained,  corrected  or  amended  complaint.  If 
no  evidence  is  to  be  taken  in  the  cause,  the  right  to  change  the  com- 
plaint shall  last  until  service  is  made  upon  the  defendant  of  the  citation 
for  judgment. 

375,  856,  408,  858,  882. 

21).  ART.  269.  Various  rights  of  action  may  be  exercised  by  the 
same  party  in  the  same  complaint,  against  the  defendant,  provided  the 
Judge  be  of  competent  jurisdiction  for  all,  and  that  the  rights  of  action 
are  not  contrary  to  each  other;  as  in  such  case  the  plaintiff  must  select 
one  of  them,  and  after  selection,  he  cannot  substitute  it  by  another. 

22).  ART.  270.  Two  contrary  remedies  may  also  be  proposed  sub- 
sidiarily and  conditionally  in  the  same  complaint,  when  the  rights  art. 
such  that  they  are  not  destroyed  by  the  selection,  or  that  for  any  other 
reason  they  are  not  considered  incompatible. 

23).  ART.  271.  He  who  shall  sue  for  a  thing  under  one  title  and  not 
prove  it,  may  later  bring  a  suit  under  another  title. 

24,  26,  35,  697,  1055. 

24).  ART.  272.  An  action  of  <>\\IH  -i-ship  i<»  a  thing  having  been  insti- 
tuted, the  plaintiff  cannot  institute-  an  action  of  srrvitiuU-  in  favor  of  tin- 
same  thing,  until  the  action  of  ownership  is  decided. 


25).  ART.  273.  If  the  plaintiff  should  demand  more  than  is  due  him, 
the  Judge  shall  declare  his  right  only  to  what  he  may  prove  is  due  him ; 
and  shall  adjudge  him  to  pay  the  defendant  the  costs  which  the  latter 
may  have  incurred  by  reason  of  the  excess  of  the  suit,  unless  the  plain- 
tiff should  prove  a  just  cause  of  error. 

26).  ART.  274.  If  he  who  sues  for  the  possession  of  real  property 
cannot  establish  his  right,  he  is  not  thereby  prevented  from  instituting 
an  action  of  ownership  as  to  the  same  realty. 

23,  697. 

27).  ART.  275.  No  one  can  be  forced  to  file  a  complaint,  excepting 
in  the  following  cases : 

1 .  When  a  person  fears  that  another  will  bring  a  suit  against  him  after 
the  death  of  some  old  or  sick  persons,  with  whose  testimony  the  former 
could  prove  his  rights,  in  which  case  he  who  so  believes  or  presumes  may 
force  his  adversary  to  bring  his  action  at  once,  or  admit  the  proof  (le 
abone  la  prueba)  for  such  time  as  he  should  do  so.     In  the  latter  case, 
that  is  to  say,  the  admission  of  the  proof  having  been  agreed  to,  it  shall 
be  taken  as  follows :  the  person  interested  shall  request  the  Judge  to 
take  the  depositions  of  the  witnesses,  after  citation  of  the  adversary,  in 
order  to  make  use  thereof  at  the  proper  time ;  and  this  testimony  shall 
be  kept  in  the  archives  of  the  Court,  under  closed  and  sealed  cover,  the 
copies  requested  by  the  parties  being  first  issued ;  and 

2.  If  a  person  should  have  a  right  of  exception  which  might  lapse  if 
another  does  not  bring  his  action  within  a  certain  time,  in  which  case 
the  former  may  request  the  Judge  to  force  the  other  to  bring  his  action, 
or  to  admit  the  exception  for  the  time  he  may  plead  it  in  court. 

(28.)  ART.  276.  A  suit  on  a  determinate  thing  must  be  brought  against 
the  person  considered  the  possessor  thereof,  who  shall  be  obliged  to 
make  answer  thereto,  unless  he  shall  state  that  he  holds  the  thing,  not 
as  his  own  but  in  the  name  of  another,  in  which  case  the  latter  shall  be 
informed  of  the  reference  of  the  complaint;  but  if  neither  the  latter 
should  enter  a  defense  in  the  suit,  the  plaintiff  shall  be  placed  in  posses- 
sion of  the  thing,  without  giving  rise  to  further  complaints,  without 
prejudice  to  the  true  owner  demanding  and  proving  his  ownership  in  a  suit 
and  the  first  plaintiff  bringing  his  suit  against  another  person,  retaining 
in  the  meantime  the  possession  given  him. 

946,  952,  955,  956,  957,  960  of  the  Civil  Code. 

29) .  ART.  277.  The  person  from  whom  a  thing  may  have  been  stolen, 
swindled,  or  robbed,  may  sue  therefor  the  person  holding  it,  or  the  per- 
son who  may  have  judicially  been  declared  the  author  of  the  robbery, 
theft  or  fraud. 

953,  957  of  the  Civil  Code. 


30).  ART.  278.  If  a  person,  fearing  that  he  will  be  sued  for  something 
in  his  possession,  should  alienate  it  to  another,  against  whom  it  would 
be  more  difficult  to  proceed,  he  shall  be  liable  for  the  damage  which  such 
alienation  jmay  cause  the  plaintiff ;  but  if  the  latter  should  not  wish  to 
bring  his  action  against  the  person  having  the  thing,  he  may  sue  the 
person  who  fraudulently  alienated  it,  for  the  price  thereof;  but  after 
having  obtained  the  price,  he  cannot  sue  for  the  thing. 

955  of  the  Civil  Code. 

31).  ART.  279.  If  a  person  should  be  sued  on  the  ground  of  the  thing 
sued  for  being  in  his  possession,  if  this  should  not  be  so,  he  must  state  it 
in  his  answer;  as  otherwise,  if  the  plaintiff  should  prove  his  ownership, 
the  defendant  becomes  liable  for  the  thing  or  for  its  price,  unless  the 
plaintiff  should  be  acting  in  proved  bad  faith,  knowing  that  the  defend- 
ant was  not  the  possessor  of  the  thing. 

95 3>  954  of  the  Civil  Code. 

32).  ART.  280.  If  a  person  sued  for  a  thing  not  in  his  possession 
should  so  state  to  the  Judge,  this  dilatory  exception  shall  be  heard,  com- 
prised in  the  demurrer  (inepta  demanda) ;  and  if  the  decision  should  be 
in  favor  of  the  defendant,  the  complaint  against  the  latter  shall  be  dis- 
missed, unless  he  should  have  acquired  the  thing  sued  for  by  theft  or 
fraud,  or  should  have  alienated  it  fraudulently  in  order  to  make  the 
action  of  the  plaintiff  more  difficult. 

271-— 952,  953,  955  of  the  Civil  Code. 

33).  ART.  281.  The  thing  sued  for  shall  remain  in  the  power  of  the 
person  possessing  it  until  the  plaintiff  shall  prove,  by  legal  proceedings, 
that  he  has  a  better  right  to  its  possession,  excepting  a  case  of  deposit  or 
sequestration,  and  the  other  cases  expressly  excepted  in  this  Code. 

34,  143  etseq.,  171  et  seq.,  981  subdivision  5,  987,  993,  1093,  II53, 
subdivision  i,  1305. — 959  of  the  Civil  Code. 

34).  ART.  282.  If  the  defendant  should  deny  having  the  thing  sued 
for,  and  the  plaintiff  should  prove  that  he  did  have  the  thing  in  his  pos- 
session, the  former  loses  the  possession  of  the  thing,  and  it  is  acquired  by 
the  plaintiff,  the  defendant,  nevertheless,  retaining  the  right  to  bring  an 
ordinary  action  of  ownership,  should  he  desire  to  prove  that  the  thing 
belonged  to  him. 

33- 

35.)  ART.  283.  If  a  person  should  sue  another  for  a  movable  thing, 
and  the  complaint  should  be  dismissed  on  proof  on  the  part  <>f  the  de- 


fendant  of  the  loss  of  the  thing  without  his  fault,  the  plaintiff  may  bring 
another  action  if  the  thing  should  return  into  the  possession  of  the  per- 
son who  had  previously  been  sued  therefor. 

23- 

36).  ART.  284.  The  plaintiff  must  clearly  specify  the  movable  sued 
for,  in  order  that  it  may  not  be  confounded  with  another,  and  that  there 
may  be  no  doubt  as  to  its  quality  and  amount. 

17,  842. 

37).  ART.  285.  If  the  thing  sued  for  should  be  a  trunk,  bale  or  any 
other  closed  movable  which  was  left  in  deposit,  or  which  disappeared 
from  the  possession  of  its  owner  in  such  condition,  it  is  not  necessary  to 
state  the  contents  thereof  in  the  complaint. 

17,  842. 

38).  ART.  286.  On  suits  on  inheritances,  it  shall  be  sufficient  that  the 
property  of  the  deceased,  or  the  part  or  quota  corresponding  to  the 
plaintiff  be  demanded  in  general. 

17,  842. 

39).  ART.  287.  Nor  is  a  statement  of  any  amount  necessary  in  pro- 
ceedings for  the  rendition  of  accounts  or  other  similar  acts. 

17,  842. 

40).  ART.  288.  When  the  thing  sued  for  consists  of  weight,  tale 
or  measure,  and  the  plaintiff  should  not  remember  how  much  it  is  exactly 
he  shall  so  state  in  his  petition,  offering  to  prove  the  exact  amount  in  the 
respective  term  of  the  action ;  and  the  Judge,  after  exacting  a  promise 
of  the  plaintiff  not  to  act  maliciously,  shall  admit  the  complaint. 

17,  842. 

41).  ART.  289.  If  the  thing  sued  for  is  realty,  the  boundaries  thereof 
and  other  circumstances  shall  be  stated  in  order  to  permit  its  identifica- 
tion and  distinction  from  other  realty  with  which  it  might  be  confounded. 

17,  842. 

42).  ART.  290.  In  cases  in  which  the  laws  require  that  the  debtor  be 
judicially  reconvened  by  the  creditor  in  order  that  he  may  be  considered 
delinquent,  the  reconvention  shall  be  understood  as  having  been  made 
when,  by  order  of  the  Judge,  personal  notice  shall  be  served  on  him  of 
the  petition  of  the  creditor  suing  for  the  debt,  with  the  presentation  of 
the  authentic  document  vouching  therefor. 

1608  and  Arts,  i  and  3  of  Civil  Code. 


8 

43)-  ART.  291.  If  the  creditor  to  whom  may  have  been  referred  the 
petition  on  the  payment  by  consignment,  presented  by  the  debtor,  in 
accordance  with  the  substantive  civil  laws,  should  not  be  answered 
within  six  days,  the  consignment  shall  be  considered  as  accepted  and 
shall  have  its  effects. 

If  in  making  reply  to  the  reference  the  creditor  should  oppose  the  pay- 
ment, pleading  that  it  is  not  made  in  accordance  with  the  obligation  of 
the  debtor,  he  must  prove  it  in  an  ordinary  action. 

1658,  subdivisions  5  and  6  of  the  Civil  Code. 

The  eight  following  articles  are  additional : 

44) .  ART.  5  of  Law  1 05  of  1 890.  Every  Judge  taking  cognizance  of  civil 
matters,  for  private  interests  and  in  an  ordinary  action  of  greater  import, 
shall  exercise  the  functions  of  a  Justice  of  the  Peace.  For  the  exercise 
thereof,  in  the  same  order  directing  the  reference  of  the  complaint,  he 
shall  fix  a  day  for  an  amicable  conference,  a  day  which  shall  not  be 
before  the  third  nor  after  the  sixth  from  the  date  of  the  service  of  the 
order  granting  the  reference.  The  conference  shall  be  held  before  the 
same  judge  and  a  resident  of  well  known  probity  and  influence. 

45).  ART.  6  of  Law  105  of  1890.  The  Judges  shall  use,  with  regard 
to  the  plaintiff  as  well  as  the  defendant,  the  compulsory  process  estab- 
lished by  Article  334  of  .this  law,  in  order  that  the  amicable  conference 
may  be  held,  in  the  cases  in  which  it  is  necessary.  With  regard  to  the 
persons  who  are  exempted  from  compulsory  process  by  the  law,  the 
conference  shall  be  waived  if  they  should  not  appear  in  due  time. 

46).  ART.  7  of  Law  105  of  1890.  When  for  any  reason,  other  than 
interruption  of  the  proceedings  or  the  non-attendance  of  the  plaintiff,  the 
conference  should  not  be  held  on  the  date  fixed,  the  period  for  answering 
the  complaint  shall  run  from  the  working  day  next  after  that  on  which 
the  conference  was  to  have  been  held,  without  prejudice  to  the  latter 
taking  place  as  soon  as  possible  and  the  employment  of  the  compulsory 
process  established  in  Article  334,*  aforecited. 

47).  ART.  8  of  Law  105  of  1890.  At  the  act  of  the  conference,  the 
Judge  and  the  resident  shall  propose  means  of  arrangement  to  the  parties, 
the  former  being  prohibited  from  expressing,  and  it  being  optional  with 
the  latter,  to  express  the  private  opinion  which  they  may  have  formed 
upon  the  matter. 

48).  ART.  9  of  Law  105  of  1890.  The  act  of  the  amicable  conference 
shall  be  held  at  two  sessions,  upon  two  consecutive  working  days,  at  such 
hour  and  for  such  time  as  the  Judge  may  determine.  If  on  account  of 
urgent  business  on  the  part  of  the  Judge  or  any  of  the  parties,  or  of  the 
resident,  the  conferences  should  be  interrupted,  the  Judge  shall  fix  a  new 
day,  which  shall  be  one  of  the  three  days  following. 

*  This  is  ordinal  No.  1604. 


If  any  of  the  parties  should  not  appear  in  due  time  to  continue  the 
conference,  the  latter  shall  not  be  held,  and  in  such  case,  or  when  no 
agreement  between  the  parties  can  be  reached,  the  term  to  make  answer 
to  the  complaint  shall  run  from  the  next  working  day,  it  not  being 
necessary  for  the  Judge  to  so  declare. 

49).  ART.  10  of  Law  105  of  1890.  If  an  agreement  be  reached,  an 
entry  shall  be  made  in  a  book,  which  shall  be  kept  in  every  court  for  this 
exclusive  purpose,  stating  clearly  and  precisely  the  obligations  and  rights 
resulting  from  the  agreement,  stating  the  net  amounts  to  be  paid  the 
parties,  and  the  date  when  payments  are  to  be  made.  Each  entry  must 
be  preceded  by  an  ordinal  number. 

50).  ART.  ii  of  Law  105  of  1890.  At  the  foot  of  the  complaint  a 
memorandum  shall  be  made  stating  whether  an  agreement  was  or  was 
not  reached,  and  in  the  event  of  an  agreement  having  been  reached,  the 
entry  shall  be  cited  by  the  respective  ordinal  number. 

The  copy  of  the  entry  referred  to,  authorized  by  the  Judge  and  the 
Secretary,  partakes  of  an  executory  character  and  serves  as  a  basis  for 
the  exception  of  res  judicata. 

51).  ART.  12  of  Law  105  of  1890.  The  functions  of  a  Justice  of  the 
Peace  shall  not  be  exercised  in  the  following  cases : 

1 .  When  by  reason  of  the  persons  or  the  nature  of  the  matter  in  ques- 
tion, and  by  virtue  of  the  provisions  of  the  Civil  Code,  a  compromise 
between  the  parties  is  not  possible. 

2469  to  2487  of  the  Civil  Code. 

2.  When  by  reason  of  the  suit  being  brought  against  uncertain  or 
unknown  persons,  the  latter  are  represented  by  the  Judge  taking  cog- 
nizance of  the  matter;  but  if  any  of  said  persons  should  appear  in  due 
time,  the  amicable  conference  shall  be  held  with  such  person,  without 
prejudice  to  continuing  the  action  with  regard  to  those  who  have  not 
entered  an  appearance ;  and 

1572,  1573,  1575,  1576,  1580,  1583,  1584,  1585,  1588,  1589,  1590 
of  the  Civil  Code. 

3.  When  the  plaintiff  or  the  defendant  do  not  reside  in  the  same  Mu- 
nicipal District  in  which  is  the  court  before  which  the  suit  may  have  been 
brought,  and  the  respective  attorneys  in  fact  do  not  have  the  power  to 
compromise.     If  a  number  of  persons  constitute  the  suing  or  sued  entity, 
and  any  of  them  should  be  present  in  the  said  District,  the  conference 
shall  be  held  with  such  person,  but  the  effects  of  the  latter  shall  in  no 
manner  prejudice  the  others. 

247 1  of  the  Civil  Code. 


10 

CHAPTER  III. 
Complainant  and  Defendant  in  General. 

52).  ART.  292.  The  complainant  is  the  person  who  appears  before 
the  Judicial  Power  claiming  the  efficiency  of  a  right,  thus  initiating  the 
suit ;  and  the  defendant,  he  of  whom  the  performance  of  the  obligation 
correlative  to  the  right  of  the  complainant  is  demanded. 


53).  ART.  293.  The  plaintiff  (actor)  is  he  who  institutes  any  instance, 
whatever  it  be;  and  adversary  (opositor)  he  who  sustains  the  instance 
against  the  plaintiff.  When  the  second  instance  is  due  to  a  consultation, 
the  Fisc  shall  be  considered  as  a  plaintiff  therein. 

9,  886. 

54).  ART.  294.  Natural  and  juristic  persons  may  be  complainants 
and  defendants,  and  appear  in  court  in  the  terms  and  with  the  excep- 
tions established  in  the  substantive  law. 

8 1,  82,  83.  73,  633  et  seq.  of  the  Civil  Code.  24,  25  and  26  of 
Law  57  of  1887.  80  of  Law  153  of  1887.  12  of  Law  169  of 
1896.  i  of  Law  62  of  1888. 

55).  ART.  295.  The  mandates,  orders,  rulings,  decisions  and  decrees 
issued  on  the  petition  of  a  party  or  ex  proprio  motu  by  any  public  official^ 
tribunal  or  court,  or  authority  in  civil  or  criminal  matters,  for  the  pur- 
pose of  detaining,  arresting  or  imprisoning  the  Diplomatic  Agents  of 
foreign  nations,  duly  accredited  near  the  Government  of  Colombia,  or 
any  of  the  persons  belonging  to  their  families,  public  retinue  or  private 
service,  shall  have  no  obligatory  value  or  legal  force  whatsoever,  and  on 
the  contrary,  shall  be  absolutely  null. 

The  same  is  prescribed  with  regard  to  orders  of  any  kind  which  may  be 
made,  summoning  any  of  the  persons  referred  to  in  this  article  to  ap- 
pear in  court  or  to  confiscate,  attach  or  detain  their  baggage  and  corres- 
pondence, or  any  other  articles  destinecl  to  their  private  use,  or  neces- 
sary to  the  discharge  of  their  functions ;  and  in  no  case,  nor  under  any 
pretext  whatsoever,  shall  the  dwellings  of  such  persons  be  searched,  nor 
any  act  of  jurisdiction  whatsoever  exercised  therein. 

56).  ART.  296.  All  the  officials  of  any  class,  or  private  individuals, 
who  shall,  knowingly,  solicit,  issue  or  execute  the  mandates,  orders, 
decrees,  rulings  or  decisions  treated  of  in  the  preceding  article,  shall  be 
considered  as  violators  of  International  Law,  and  punished  as  provided 
in  the  law  on  the  immunity  of  the  Diplomatic  Agents  of  foreign  nations. 

(57).  ART.  297.  The  Senators  and  Representatives  of  the  Cmitfivss  of 


II 

the  Union  cannot  be  sued  nor  have  execution  levied  against  them  during 
the  time  to  which  the  immunity  which  they  enjoy  under  the  Federal 
Constitution  extends. 

107  of  the  present  Constitution. 

58).  ART.  298.  Senators  and  Representatives  may  be  sued,  and  in  the 
event  that  during  the  course  of  the  action  it  should  be  necessary  to 
employ  legal  compulsory  process  against  them,  while  they  enjoy  im- 
munity, the  Judge  or  Tribunal  shall  suspend  the  course  of  the  cause  until 
the  immunity  ceases. 

59).  ART.  299.  Whenever  in  a  suit  brought  by  a  Senator  or  Repre- 
sentative, enjoying  immunity,  the  defendant  should  avail  himself  of  an 
action  of  reconvention  against  him,  the  proceedings  shall  be  suspended 
until  the  immunity  of  the  complainant  shall  cease. 

861,  862,  863. 

60).  ART.  300.  It  shall  not  be  understood  that  Senators  and  Repre- 
sentatives are  en  route  for  their  domiciles,  nor,  consequently,  that  they 
enjoy  the  immunity  granted  them  by  the  preceding  articles,  when  they 
shall  have  remained  en  route,  in  the  place  where  they  appear  as  com- 
plainants or  defendants,  for  more  than  eight  days,  unless  such  stay 
should  have  been  due  to  sickness. 

61).  ART.  301.  A  child  under  the  power  of  his  father  shall  be  repre- 
sented by  the  latter,  provided  that  he  may  have  to  appear  in  court  as 
complainant  or  defendant. 

306,  307,  310,  311  of  the  Civil  Code. 

62).  ART.  302.  A  minor  under  tutorship  shall  be  represented  in  court 
by  his  tutor. 

480  of  the  Civil  Code. 

63).  ART.  303.  A  minor  having  a  curator  cannot  appear  in  court 
without  the  permission  of  his  curator,  upon  whom,  furthermore,  all 
proceedings  in  the  action  shall  be  served,  the  same  as  upon  the  minor. 

480,  529  of  the  Civil  Code. 

64).  ART.  304.  A  minor  under  twenty-one  years  of  age  and  over 
fourteen,  without  a  father  or  curator,  who  should  find  it  necessary  to 
appear  in  court,  must  appoint  a  curator  ad  litem,  or  for  the  action,  and 
should  he  fail  to  do  so,  the  Judge  shall  appoint  one. 

526,  583  of  the  Civil  Code. 


12 

65).  ART.  305.  A  son  of  a  family  or  minor  who,  in  ilie  absence  of  his 
father,  tutor  or  curator,  should  find  it  necessary  to  institute  a  suit,  shall 
so  state  to  the  Judge,  who,  after  ascertaining  the  facts,  shall  grant  him 
permission  to  appear  in  court,  and  appoint  a  curator  for  the  litigation,  or 
confirm  the  one  appointed  by  the  person  interested,  if  more  than  four- 
teen years  of  age. 

583  of  the  Civil  Code. 

66).  ART.  306.  No  child  in  the  power  of  his  father,  or  minor  having  a 
tutor  or  curator,  can  be  sued  unless  the  person  upon  whom  he  is  de- 
pendent is  in  the  place  where  the  proceedings  are  to  be  held  in  order  that 
notice  of  the  suit  may  first  be  served  upon  the  latter.  If  this  provision 
be  not  observed  the  entire  action  shall  be  void. 

67).  ART.  307.  When  the  father,  tutor  or  curator  is  not  present,  and 
his  early  return  is  not  expected,  the  fact  having  been  established  by  the 
plaintiff,  the  Judge  shall  appoint  a  curator  ad  litem  to  the  minor,  or  the 
one  appointed  shall  be  confirmed  if  he  should  be  over  fourteen  years  of 
age;  and  the  proceedings  shall  be  continued  with  this  curator,  with  or 
without  the  intervention  of  the  minor,  as  the  case  may  be. 

583  of  the  Civil  Code. 

Supplemented  by  the  following: 

68).  ART.  23  of  Law  100  of  1892.  The  provision  of  article  307*  of 
the  Judicial  Code  applies  to  a  case  in  which  a  minor  is  obliged  to  appear 
in  court  against  his  father  or  guardian. 

In  case  the  child  shall  desire  to  sue  the  father,  before  the  appointment 
of  a  curator  ad  litem,  judicial  permission  must  be  granted  him  to  appear 
as  plaintiff. 

When  in  a  universal  action  the  father  of  the  minor  should  be  personally 
interested  in  the  action,  he  cannot  represent  the  child,  to  whom  a  curator 
ad  litem  shall  be  appointed,  as  provided  in  the  said  article. 

305  of  the  Civil  Code. 

69).  ART.  308.  A  married  person  over  eighteen  years  of  age  and  a 
person  who  has  been  declared  qualified  for  the  free  management  of  his 
interests,  may  be  complainants  and  defendants,  and  in  general,  appear 
freely  in  court,  in  the  same  manner  as  persons  of  age  who  are  not  under 
the  paternal  authority. 

314  subdivision  2,  339,  340,  343  of  the  Civil  Code. 


*  Ordinal  67. 


70).  ART.  309.  A  married  woman  cannot  appear  in  court  as  com- 
plainant, without  the  special  or  general  permission  of  her  husband. 

181,  185,  1 86,  1 88  of  the  Civil  Code. 

71).  ART.  310.  When  a  suit  is  brought  against  a  married  woman,  the 
husband  must  be  first  notified,  if  the  latter  should  be  present  in  the  place 
where  the  action  is  held,  unless  the  wife  shall  have  special  permission  to 
litigate,  or  in  general,  to  do  those  things  which  would  not  be  valid  with- 
out the  permission  of  her  husband,  in  which  case  there  is  no  necessity 
for  such  previous  notification. 

72).  ART.  311.  If  the  husband  should  be  absent  and  his  early  return 
not  expected,  upon  this  being  established  by  the  plaintiff  the  Judge  shall 
grant  permission  to  the  wife  to  appear  in  court,  even  though  the  husband 
should  not  have  been  notified  of  the  complaint. 

1 88  of  ^the  Civil  Code. 

73).  ART.  312.  In  case  of  the  absence  of  the  husband,  as  expressed 
in  the  preceding  article,  the  Judge  may  also  grant  permission  to  the  wife 
to  sue  for  and  defend  her  property,  upon  her  showing  the  necessity  of  so 
doing  and  the  absence  of  an  attorney-in-fact  constituted  by  the  husband. 

1 88  of  the  Civil  Code. 

74).  ART.  313.  Actions  against  deaf  mutes,  the  insane,  the  weak 
minded  and  prodigals  under  judicial  interdiction,  shall  be.  conducted 
with  their  respective  curators,  and  the  latter  shall  represent  them  in 
court  when  it  may  be  necessary  for  the  former  to  appear  as  complainants. 

53i,  545,  553,  557,  59$  of  the  Civil  Code. 

75).  ART.  314.  When  the  Nation  or  any  State  is  obliged  to  litigate 
as  complainant  or  defendant,  it  shall  be  represented  by  its  respective 
vSolicitors  or  Personeros. 

Supplemented  by  the  following  article : 

76).  ART.  13  of  Law  105  of  1890.  Whenever  a  Department  or  the 
Municipal  Districts  may  be  obliged  to  appear  in  court,  either  as  com- 
plainants or  defendants,  they  shall  be  represented  by  the  respective 
agent  of  the  Department  of  Public  Prosecution  (Ministerio  Publico),  or 
by  a  special  attorney,  appointed  for  the  purpose. 

Supplemented  in  its  turn  by  the  following  article,  and  by  article  12  of 
Law  169  of  1896. 

77).  ART.  24  of  Law  100  of  1892.  The  appointment  of  .an  attorney 
in  the  cases  of  article  1 3*  of  Law  105  of  1 890,  shall  be  made  by  the  respect- 


*  Ordinal  art.  76. 


ive  Agent  of  the  Department  of  Public  Prosecution,  with  the  proper 
authority,  in  the  form  established  in  Chapter  4,  Title  I,  Book  II  of  the 
Judicial  Code. 

Amended  by  the  following  article: 

78).  ART.  3  of  Law  50  of  1894.  In  addition  to  the  powers  conferred 
upon  the  Municipal  Councils  by  article  208  of  the  Political  and  Municipal 
Code,  they  shall  have  the  following : 

******* 

3.  To  appoint  attorneys  to  represent  the  interests  of  the  respective 
municipality  in  the  special  and  determined  cases  for  which  the  Council 
may  deem  proper  to  appoint  them. 

These  attorneys  shall  have  the  character  of  Agents  of  the  Department 
of  Public  Prosecution  in  the  special  cases  for  which  they  may  be  ap- 
pointed.* 

79).  ART.  315.  Until  there  should  be  a  judicial  record  of  the  fact  that 
the  heirs  are  in  possession  of  the  property  of  the  inheritance,  the  repre- 
sentative of  the  latter  in  court  shall  be  the  executor,  and  in  the  absence 
of  one,  the  curator  or  defender  who  must  be  appointed  by  the  Judge. 

The  following  article  is  additional : 

80).  ART.  14  of  Law  105  of  1890.  The  requisite  of  the  intervention 
of  the  heirs  present  or  of  the  curator  of  the  vacant  inheritance,  required 
in  certain  cases  by  article  1352  of  the  Civil  Code,  shall  be  understood  as 
complied  with  by  the  fact  that  on  the  petition  of  the  executor,  or  of  any 
other  of  the  persons  interested,  the  heirs  are  notified  of  the  proceedings 
instituted  or  action  taken  by  the  executor,  or  to  which  he  is  required  to 
answer,  as  the  case  may  be.  Said  notice  shall  be  ordered  made  by  the 
Judge  who  may  have  to  take  cognizance  of  the  matter  at  first  instance. 

1353,  second  par.  of  the  Civil  Code. 

81).  ART.  316.  Suits  against  legitimate  communities  or  associations, 
that  is  to  say  those  legally  recognized,  shall  be  brought  against  their 
syndics,  agents,  treasurers  or  persons  who  represent  them  in  court,  in 
the  event  that  they  shall  have  been  established  in  a  known  manner ;  and 
if  not,  against  the  persons  at  the  head  of  such  communities  or  associa- 
tions at  the  place  of  the  action. 

54,  129. 

82).  ART.  317.  The  same  officials  shall  i-i-prc-si-nt  llu-  eoniimiiiitirs 
or  associations  when  it  may  be  necessary  for  the  latter  to  appear  in 
court  as  complainants. 

54,  1 29.     Law  62  of  1888. 
*  Amended  in  its  turn,  by  article  i  .•  of  l.;i\\   [69 


15 

83).  ART.  318.  What  has  been  stated  with  regard  to  communities 
and  associations  in  general  in  the  two  preceding  articles,  shall  be  under- 
stood to  apply  to  religious  communities,  associations  or  sects. 

54- 

84).  ART.  319.  Even  though  there  be  two  or  more  persons  who  as 
tutors,  curators,  executors,  attorneys  in  fact,  syndics,  etc.,  may  repre- 
sent a  person,  community  or  association,  or  appear  in  court  for  the  same, 
the  proceedings  shall  be  conducted  with  one  of  said  persons  only,  to  the 
exclusion  of  all  the  others,  and  all  process,  to  the  execution  of  the  judg- 
ment, inclusive,  shall  be  served  upon  said  person.  This  does  not  include 
the  attorneys  in  fact  (agents)  with  regard  to  whom  the  special  provis- 
ions of  this  Code  shall  be  observed. 

126,  127. 

85).  ART.  320.  All  persons  having  an  interest  in  the  suit  may  sus- 
tain an  action  as  complainants  or  defendants.  When  more  than  two 
persons  appear  on  each  side  for  the  same  action,  the  Judge  shall  require 
that,  within  twenty-four  hours,  they  designate  a  single  individual,  either 
as  principal,  or  as  attorney  in  fact,  to  continue  the  action  with  such 
person  the  results  of  which  shall  indistinctively  affect  all  those  who  may 
have  entered  an  appearance. 

86).  ART.  321.  Any  doubt  in  the  judicial  procedure,  either  as  to  the 
consideration  of  the  facts,  or  as  to  the  application  of  the  law,  shall  be 
decided  in  favor  of  the  defendant,  in  the  absence  of  other  principles 
established  in  the  law. 

CHAPTER  IV. 
Attorneys  in  Fact. 

87).  ART.  322.  Both  the  complainant  and  the  defendant  may  initi- 
ate and  prosecute  a  suit  through  another  person,  which  person  shall 
be  called  a  judicial  attorney  in  fact  (apoderado)  if  appointed  with  the 
legal  formalities. 

131,  132,  85. 

88).  ART.  323.  Minors,  a  married  woman,  and  in  general  persons 
dependent  upon  others,  may  appoint  attorneys  in  fact,  acting  in  accord- 
ance with  the  provisions  of  this  Code  with  regard  to  the  same  in  the 
event  that  it  shall  be  necessary  for  them  to  appear  in  court,  as  for  such 
purpose,  the  act  of  executing  a  power  of  attorney  is  considered  a  judi- 
cial act. 

61  to  65,  67,  70,  72,  73,  74,  129. 


i6 

89).  ART.  324.  Any  male  qualified  to  appear  in  court  may  be  a 
judicial  attorney  in  fact,  with  the  exception  of  those  not  in  the  enjoy- 
ment of  their  civil  rights,  and  the  others  expressly  excepted  in  this 
chapter. 

61  to  65,  91. 

90).  ART.  325.  A  woman  may  act  only  under  a  power  conferred  by 
her  parents  or  her  husband,  and  this  in  the  event  of  being  imprisoned, 
sick  or  incapacitated  in  any  other  manner,  and  that,  by  reason  of  her 
poverty  or  another  similar  cause,  she  have  no  other  person  available, 
without  prejudice  to  the  right  to  appear  and  make  statements  and  fur- 
nish bail  in  the  same  cases. 

91).  ART.  326.  By  reason  of  their  offices,  the  officials  referred  to 
in  article  206  cannot  be  attorneys  in  fact;  and  when  it  shall  become 
necessary  for  them  to  appear  in  court  for  private  affairs,  as  complain- 
ants or  defendants,  they  shall  do  so  through  attorneys  in  fact,  as  there 
provided. 

92,  93- 

SEVENTEENTH  AMENDMENT. 

(Of  Law  53  of  1882.) 

92).  ART.  327.  All  public  officials  of  the  federal  order  are  forbidden 
to  accept  and  exercise  powers  in  the  administrative  or  judicial  repre- 
sentation of  the  affairs  of  private  individuals  before  the  authorities  or 
functionaries  of  the  Union. 

vSupplemented  by  the  following  article : 

93).  ART.  17  of  Law  105  of  1890.  The  officials  of  the  Judiciary 
and  those  of  the  Department  of  Public  Prosecution,  even  though  they 
should  be  on  leave  of  absence,  cannot  exercise  any  powers  in  judicial 
or  administrative  matters,  nor  appear  as  advocates  in  judicial  matters. 
This  prohibition  extends  to  those  under  fourteen  years  of  age,  as  those 
over  this  age  may,  with  the  permission  of  their  curator,  appear  in  their 
own  affairs.  This  prohibition  also  applies  to  those  who  may  be-  under 
judicial  interdiction  and  the  Ministers  of  the  cults. 

The  officials  of  the  judiciary  cannot  be  agents  in  affairs  of  any  cliauu 
ter,  nor  testamentary  executors  or  administrators. 

91. 

94).  ART.  328.  The  general  powers  for  suits,  which  are  those-  by 
which  the  attorney  in  fact  is  authorized  to  represent  the  principal  in 
any  action  brought  by  or  against  him,  can  be  conferred  only  by  means 
of  a  public  instrument,  executed  with  the  formalities  required  by  the 
laws. 

97,  98,  102,  120,  125. 


I? 

95).  ART.  329.  Special  powers,  which  are  those  that  only  authorize 
the  attorney  in  fact  to  represent  the  principal  in  a  specific  suit,  may  be 
executed  in  any  of  the  following  ways : 

1.  By  a  public  instrument. 

2.  By  means  of  a  memorial  which  the  principal  in  person  shall  deliver 
to  the  Secretary  of  the  Tribunal  or  Judge  which  is  taking  or  may  take 
cognizance  of  the  cause,  and  at  the  foot  of  which  said  official  shall  make 
a  note  stating  that  it  was  presented  by  the  principal  in  person  on  such 
a  date.     The  memorial  shall  contain  the  designation  of  the  Tribunal  or 
court  to  which  it  is  addressed,  the  name  and  residence  of  the  principal, 
the  name  and  residence  of  the  attorney  in  fact  and  a  very  clear  determi- 
nation of  the  suit  for  which  it  is  granted. 

3.  By  means  of  a  memorial,  drafted  in  accordance  with  the  provisions 
of  the  preceding  subdivision,  delivered  in  person  by  the  principal  to  the 
national  Judge  of  his  domicile,  when  he  does  not  reside  in  the  place 
where  the  proceedings  are  held.     Said  memorial  must  be  addressed,  as 
in  the  preceding  case,  to  the  Judge  or  Tribunal  which  is  taking  or  may 
take  cognizance  of  the  cause,  and  at  the  foot  thereof  the  national  Judge 
to  whom  it  may  be  presented  shall  attach  a  note  to  the  effect  that  said 
memorial  was  presented  in  person  by  the  principal  to  the  said  Judge  and 
his  Secretary,  both  of  whom  shall  sign  the  note. 

SIXTEENTH  AMENDMENT. 
(Of  Law  53  of  1882.) 

§  When  the  principal  does  not  reside  in  the  place  where  the  respective 
national  Judge  maybe,  he  may  present  the  memorial  referred  to  in  this 
paragraph,  to  the  Judge  of  the  District  in  which  the  principal  may  be, 
and  the  Judge  shall  affix  the  note  of  personal  presentation  in  accordance 
with  the  provisions  respecting  Judges.  After  this  shall  have  been  done, 
he  shall  transmit  the  memorial  to  the  respective  national  Judge,  in  order 
that  he  may  authenticate  the  presentation,  and  said  memorial,  thus 
authenticated,  shall  have  all  legal  effects. 

96,  98,  102,  120,  321. 

The  following  article  is  supplemental : 

96).  ART.  1 8  of  Law  105  of  1890.  The  parties  or  their  attorneys  in 
fact  may,  verbally  or  in  writing,  appoint  defenders  or  patrons  (patronos) 
for  acts  which  are  to  be  performed  verbally.  If  they  appoint  them  in 
writing,  they  shall  do  so  by  means  of  a  memorial  addressed  to  the  Justice 
or  Judge  taking  cognizance  of  the  cause,  and  which  the  said  defend- 
ers or  patrons  may  present. 

97).  ART.  330.  The  general  powers  shall  contain,  in  addition  to  the 
designation  of  the  principal  and  of  the  attorney  in  fact,  with  an  indica- 


i8 

tion  of  the  residence  of  each  and  that  it  is  conferred  for  all  litigation  to 
which  the  principal  may  be  a  party,  the  other  formalities  which  are 
required  by  law  for  the  validity  of  public  instruments. 

94- 

98).  ART.  331.  In  addition  to  the  signature  of  the  principal,  the 
power  of  attorney  may  bear  that  of  the  attorney  in  fact,  as  a  proof  of 
his  acceptance.  If  this  signature  should  not  appear,  the  Judge  or  Tri- 
bunal taking  cognizance  of  the  cause  shall  direct  that  the  power  be  com- 
municated to  the  attorney  in  order  that  he  may  state  whether  he  accepts 
it  or  not,  and  until  this  shall  be  done  the  Judge  shall  not  make  any 
order  directing  that  he  be  considered  as  such  attorney  in  fact.  Without 
such  order,  the  attorney  in  fact  shall  not  be  considered  as  a  party  to  the 
action . 

TOO,  821,  subdivision  2. 

FOURTH  AMENDMENT. 

(Of  Law  46  of  1876.) 

99).  ART.  332.  The  Judge  or  Tribunal  taking  cognizance  of  the 
cause,  whenever  a  power  is  presented  to  the  same,  shall  examine  whether 
it  has  been  conferred  with  the  legal  requisites  and  shall  return  it  if  any 
should  be  lacking.  In  addition,  when  it  is  admitted,  the  court  shall 
direct  that  the  opposite  party  be  informed  thereof,  and  if  such  party 
should  not  plead  within  twenty-four  hours  that  the  power  of  attorney 
is  improperly  conferred  by  reason  of  its  lacking  some  of  the  requisites 
prescribed  by  the  preceding  articles,  its  nullity  cannot  subsequently  be 
pleaded,  nor  can  the  proceedings  had  be  annulled  by  reason  of  an  insuffi- 
ciency of  representation  (personerid) . 

821. 

100).  ART.  333.  It  shall  be  understood  that  the  attorney  in  fact 
accepts  the  power  if  he  should  use  it;  and  by  accepting  it,  he  assumes 
the  duties  which  are  imposed  by  the  laws  upon  judicial  attorneys  in  fact. 

98. 

THIRD  AMENDMENT. 

t 

(Of  Law  53  of  1882.) 

101).  ART.  334.  The  attorney  in  fact  may  substitute  the  power,  ivm 
though  special  power  for  this  purpose  may  not  have  been  conferred  upon 
him  therein. 

102,  106,  108,  109,  no. 


19 

102).  ART.  335.  The  substitution  must  be  made  in  the  same  manner 
as  the  power  was  executed,  that  is  to  say,  by  means  of  a  memorial,  when 
the  power  shall  have  been  conferred  in  this  manner,  and  by  a  public 
instrument,  if  thus  conferred.  Nevertheless,  the  general  power  may  be 
substituted  by  a  memorial  or  public  instrument,  when  special  for  each 
suit. 

103).  ART.  336.  Of  every  power  conferred  by  means  of  a  memorial, 
the  Secretary  to  the  Judge  taking  cognizance  of  the  cause  shall  make  a 
copy  after  its  presentation,  and  shall  do  the  same  with  the  substitutions 
executed  in  this  manner.  Said  copies  shall  be  kept  together  with  the 
copy  of  the  complaint. 

344,  846. 

104).  ART.  337.  The  powers  executed  in  a  foreign  country  in  order 
to  be  exercised  in  Colombia,  must  be  drawn  up  in  accordance  with  the 
formalities  required  in  the  place  where  conferred;  but  they  must,  in 
addition,  be  authenticated  by  the  diplomatic  or  consular  employee  of 
Colombia  resident  in  said  place,  and  in  the  absence  of  such  officials,  by 
\_  the  Consul  or  Minister  of  a  friendly  nation. 

550,  759- 

Supplemented  by  the  following  articles : 

105).  ART.  13  of  Law  124  of  1890  (on  the  intestate  succession  of  for- 
eigners). Powers  of  attorney,  certificates  of  the  registry  of  civil  status 
and  other  documents  executed  in  a  foreign  country,  which  the  inter- 
ested persons  may  produce  before  the  Courts  and  Tribunals,  for  the 
purpose  of  establishing  their  rights,  shall  be  valid  if  they  bear  the 
authentications  required  by  the  Colombian  laws.  If  authenticated  in 
this  manner,  it  is  presumed  that  they  are  issued  in  accordance  with  the 
local  law  of  their  origin,  unless  an  interested  party  should  prove  the 
contrary. 

106).  ART.  338.  Powers  for  suits  confer  upon  the  attorney  in  fact  the 
authority  necessary  to  institute  and  prosecute  the  suit  to  its  termination, 
as  if  he  were  the  principal ;  being  able  to  exercise  all  the  rights  conferred 
upon  the  latter  in  his  capacity  of  litigant.  But  in  order  to  substitute 
the  power,  abandon  the  suit,  or  conclude  it  by  compromise,  the  attorney 
in  fact  requires  special  and  express  power. 

101,  108,  1 10,  132,  594. — See  also  Law  169  of  1896,  art.  14. 

107).  ART.  339.  The  attorney  in  fact  may  answer  interrogatories,  if 
he  should  have  instructions  therefor  from  his  principal.  If  he  should  not 
have  such  instructions,  or  if  the  party  presenting  the  same  should  de- 
mand that  they  be  answered  by  the  other  personally,  the  latter  must 


20 

make  reply  thereto  whether  he  be  in  the  place  where  the  proceedings 
are  held  or  not. 

1 08).  ART.  340.  In  order  to  substitute  a  power  of  attorney,  when  an 
express  power  shall  have  been  conferred  therefor,  it  is  not  necessary  that 
the  attorney  in  fact  have  accepted  or  exercised  the  power  of  attorney. 

101,  106. 

109).  ART.  341.  A  power  of  attorney  having  been  substituted,  the 
attorney  may  re-assume  it  if  the  substitute  should  not  accept,  or  renounce 
it  or  fail  in  any  other  manner.* 


FOURTH  AMENDMENT. 
(Of  Law  53  of  1882.) 

ARTICLE.  Article  275  of  the  Code  is  repealed,  f 

1 10.)  ART.  15  of  Law  105  of  1890.  The  attorneys  in  fact  and  the  sub- 
stitutes may  revoke  the  substitutions  which  they  may  make  and  those 
emanating  therefrom,  and  again  exercise  the  power  or  substitute  it,  even 
though  they  shall  not  have  reserved  these  powers  expressly. 

in).  ART.  342.  No  attorney  in  fact  is  responsible  for  the  conse- 
quences of  the  suit  if  he  shall  not  have  bound  himself  expressly  therefor. 
But  he  must  defray  the  expenses  necessary  for  the  continuation  of  the 
business,  reserving  his  right  against  the  principal. 

112).  ART.  343.  The  attorney  in  fact  is  responsible  for  the  amount 
of  the  adjudication  of  costs  in  the  following  cases : 

1 .  When  the  principal  does  not  reside  in  the  place  where  the  costs  are 
to  be  collected,  and  the  attorney  in  fact  should  be  constituted  there ;  but 
the  liability  of  the  latter  shall  cease  if  a  month  having  elapsed  since  the 
notification  of  the  judgment,  this  right  should  not  have  been  enforced 
against  him ;  and 

2.  When  the  attorney  in  fact  shall  have  bound  himself  in  the  power  of 
attorney  to  pay  the  judgment,  or  the  costs  only. 

113).  ART.  344.  After  the  attorney  in  fact  shall  have  appeared  in 
court  in  the  name  of  his  constituent,  he  can  no  longer  withdraw  volun- 
tarily, but  he  shall  be  obliged  to  conclude  the  litigation,  unless  his  power 
be  revoked,  or  he  should  substitute  or  renounce  it  with  legal  cause,  or 
with  the  consent  of  the  principal.  If  he  absent  himself  or  withdraw 
arbitrarily  or  without  the  constituent  having  appointed  another  attorney 
in  fact,  he  shall  always  be  subject  to  the  liability  imposed  upon  him  by 
the  preceding  article,  in  addition  to  that  which,  in  a  proper  case,  can  be 

*  Subrogated  by  ordinal  1 10. 

f  Said  iirtick'  is  ;is  follows:   "Art.  j;.s.    The  subs!  it  ult-  c;mn<>t  substitute" 


21 


enforced  against  him  by  the  principal  by  reason  of  the  abandonment  of 
the  charge. 

122. 

114).  ART.  345.  As  a  general  rule,  no  one  can  represent  another  in 
court  unless  it  be  under  a  power  of  attorney  executed  with  the  legal  for- 
malities ;  but  in  order  to  make  answer  to  a  complaint,  after  it  shall  have 
been  served  upon  the  interested  party,  and  take  an  appeal,  when  a  fail- 
ure to  do  so  should  entail  a  grave  injury  to  the  party,  a  power  is  not 
necessary :  any  one  may  do  so,  upon  furnishing  surety  to  the  satisfaction 
of  the  Judge  that  the  party  for  whom  he  speaks  will  approve  it  as  if  done 
by  himself. 

90,  130. 

115).  ART.  346.  A  person  may  also  appear  in  court  without  a  power 
of  attorney  for  his  relatives  within  the  fourth  degree  of  consanguinity,  or 
second  of  affinity ;  the  wife  for  her  husband  in  the  cases  of  article  312,* 
and  the  co-owner  of  the  same  tenement  or  of  another  thing  for  his  co- 
owner  or  participant,  in  an  action  involving  the  thing  held  in  common, 
provided  that  the  person  interested  should  be  absent  or  prevented  from 
appearing,  and  that  he  will  suffer  damage  if  the  suit  should  not  be  insti- 
tuted or  the  action  prosecuted.  But  the  person  thus  appearing  in  the 
name  of  another,  must  furnish  the  surety  referred  to  in  the  preceding 
article,  whenever  the  opposite  party  shall  require  it  before  the  expiration 
of  a  month  from  the  time  the  person  acting  for  his  relatives  or  co -owner 
shall  have  entered  an  appearance  in  the  action. 

130. 

1 1 6).  ART.  347.  The  attorneys  in  fact  may  stipulate  with  their  prin- 
cipals, without  restriction,  what  the  latter  are  to  pay  them  as  compensa- 
tion for  their  services.  In  the  absence  of  any  agreement,  said  compen- 
sation shall  be  fixed  by  two  experts  appointed,  one  by  the  principal  and 
the  other  by  the  attorney  in  fact,  and  in  the  case  of  disagreement  between 
the  experts,  or  in  the  event  that  either  of  the  parties  should  not  appoint 
an  expert,  the  Judge  shall  appoint  the  person  who  is  to  settle  the  dis- 
agreement or  fill  the  vacancy. 

487,  488. 

117).  ART.  348.  The  following  are  the  obligations  of  the  judicial 
attorney  in  fact : 

1.  To  exhibit  the  power  upon  entering  an  appearance  in  the  suit. 

2.  To  conform  strictly  to  the  terms  of  the  power  of  attorney,  and  the 
instructions  which  the  principal  may  have  given  him. 

*  Ordinal  73. 


22 

3.  To  return  in  due  time  the  records  which  he  may  receive  in  the  office 
of  the  Secretary  of  the  respective  Tribunal  or  court. 

4.  To  be  very  active  and  diligent  in  the  discharge  of  his  duties,  under 
the  rules  which  may  have  been  laid  down  for  him. 

5.  To  preserve  faith  to  the  party  whom  he  may  represent,  abstaining 
from  revealing  his  secrets,  under  the  penalty  imposed  upon  those  guilty 
of  dereliction  of  duty. 

6.  To  preserve  in  order  and  good  condition  and  return  in  due  time  the 
documents  which  he  may  receive  from  his  principal. 

1 1 8).  ART.  349.  The  attorney  is  responsible  for  delay  or  tne  inexcu- 
sable loss  of  processes,  provisions  and  instruments,  the  same  as  the 
parties. 

122. 

119).  ART.  350.  Any  power  may  be  revoked  without  restriction  by 
the  principal ;  but  when  the  latter  should  do  so,  he  must  appoint  another 
attorney  in  fact  to  continue  representing  him  in  court,  or  inform  the 
respective  Judge  or  Court  that  he  will  continue  the  suit  in  person,  desig- 
nating in  such  case  the  house  where  notices  are  to  be  served.  The  Judge, 
in  granting  the  revocation  of  the  power,  shall  indicate  the  person  with 
whom  subsequent  proceedings  in  the  suit  are  to  be  had. 

120,  121.  126,  123. 

120).  ART.  351.  The  revocation  of  a  general  power  must  be  made  by 
means  of  a  public  instrument,  and  that  of  a  special  power  may  be  made 
by  a  public  instrument  or  by  a  memorial  presented  in  the  same  terms  as 
that  by  which  the  power  was  constituted. 

The  following  article  is  additional : 

121).  ART.  1 6  of  Law  105  of  1890.  The  revocation  of  a  general 
power  produces  its  effects,  with  regard  to  a  third  person,  whenever  it  be 
proved  that  he  had  due  knowledge  thereof. 

If  the  public  be  advised  in  the  official  newspaper  of  a  Department  of 
the  revocation  of  a  general  power  of  attorney,  the  latter  shall  go  into 
effect  with  regard  to  the  residents  of  the  said  Department,  thirty  days 
after  the  publication.  If  such  publication  should  be  made  in  the  official 
periodical  of  the  Nation,  the  effects  of  the  revocation  shall  be  produced 
throughout  the  Nation  three  months  after  the  publication. 

119. 

122).  ART.  352.  The  attorney  in  fact  may  also  renounce  the  power 
with  just  cause,  such  as  sickness,  the  necessity  of  absenting  himself,  or  to 
avoid  grave  injury  to  his  interests;  and  in  such  case  he  must  advise  tin- 
constituent  in  order  that  he  may  appoint  another  attorney,  or  state  that 


23 

he  will  continue  the  suit  in  person.     If  the  party  should  fail  to  do  so,  the 
subsequent  conduct  of  the  attorney  in  fact  shall  be  to  his  prejudice. 

113,  123- 

123).  ART.  353.  He  who  shall  have  litigated  once  in  person  or  through 
an  attorney  in  fact,  shall  not  be  considered  as  separated  from  the  action 
until  the  person  who  is  to  take  his  place  shall  appear  of  record. 

122. 

t 

124).  ART.  354.  A  power  of  attorney  for  suits  terminates  by  the 
death  of  the  constituent  in  every  case,  and  also  by  the  death  of  the  at- 
torney, if  the  complaint  shall  not  have  been  answered;  but  if  the 
answer  should  already  have  been  made,  the  attorney  shall  continue 
to  represent  the  heirs  of  the  constituent,  until  they  shall  revoke  his  power 
or  until  the  latter  terminates  for  another  legal  cause. 

In  summary  actions  and  in  all  other  suits  in  which  there  is  no  answer 
to  the  complaint,  the  power  of  attorney  terminates  by  the  death  of  the 
constituent  before  service  of  the  complaint  upon  the  defendant. 

125).  ART.  355.  General  powers  for  suits  may  be  granted  for  a  deter- 
minate period,  upon  the  termination  of  which  the  attorney  in  fact  cannot 
begin  a  new  suit ;  but  such  suits  in  which  an  answer  shall  have  been  made 
to  the  complaint,  must  continue,  without  the  necessity  of  a  new  power. 

94. 

126).  ART.  356.  A  party  who  shall  have  appointed  an  attorney  for  a 
suit,  may  appoint  another  attorney  for  the  same  matter;  and  in  such 
case  the  presentation  and  admission  of  the  new  attorney  shall  be  con- 
strued as  a  revocation  of  the  previous  power.  The  parties  who  may  have 
appointed  attorneys  may  also  personally  enter  an  appearance  in  the  suit, 
without  such  action  implying  a  revocation  of  the  power,  unless  an  express 
statement  be  made  that  it  is  revoked. 

§ .  Likewise  an  attorney  may  be  appointed  for  the  first  instance  and 
another  one  for  the  second,  or  for  an  appeal  from  any  decision,  without 
such  action  implying  a  revocation  of  the  power  conferred  for  all  the  acts 

in  the  suit  before  the  Judge  of  first  instance. 

• 
119. 

127).  ART.  357.  More  than  one  attorney  for  the  same  suit  cannot  be 
appointed,  and  if  several  should  have  been  appointed  in  the  same  power 
of  attorney,  the  first  one  shall  be  considered  as  the  attorney  in  fact  and 
the  remainder  as  substitutes,  in  their  order,  in  the  event  of  th^  absence  or 
impediment  of  the  first  attorney. 

126,  84,  85. 


24 

128).  ART.  358.  The  attorney  in  fact  of  the  complainant  in  a  suit  is 
obliged  to  answer  and  prosecute  the  suit  in  reconvention  which  the  de- 
fendant may  institute  against  him. 

129).  ART.  359.  The  officials  who,  according  to  this  Code,  represent 
in  the  place  of  the  action  legally  incorporated  associations  or  communi- 
ties, or  those  who  in  the  absence  of  the  former  represent  them  in  any 
other  place,  may  appoint  attorneys  in  fact  should  they  not  desire  or  be 
unable  to  appear  personally  in  court,  whether  as  complainants  or  as 
defendants. 

87,  88. 

130).  ART.  360.  If  a  person  shall  have  prosecuted  an  action  in  the 
name  of  another  without  a  power  of  attorney  executed  with  the  legal 
formalities,  what  he  may  have  done  shall  be  valid  if  ratified  by  the  party 
as  done  by  said  party,  provided  that  such  ratification  take  place  before 
the  rendition  of  the  final  judgment  at  last  instance. 

114,  115,  821,  subdivision  3. 

131).  ART.  361.  No  association,  community  or  company  can  be  a 
judicial  attorney  in  fact. 

87. 

132).  ART.  362.  All  that  may  be  said  of  the  parties  is  understood  as 
said  of  the  judicial  attorneys  in  fact  when  the  law  makes  no  express  dis- 
tinction. 

106,  594,  599. — See  also  Law  169  of  1896,  art.  14. 

CHAPTER  V. 
Accessory  actions  of  the  complainant. 


Attachment  of  Persons  (Arraigo). 

133).  ART.  363.  Before  or  after  the  filing  of  a  complaint,  the  person 
interested  may  request  the  attachment  (arraigo}  of  the  person  whom  he 
has  sued  or  is  about  to  sue;  but  herefor  it  is  necessary  that  he  prove 
summarily  that  such  person  is  his  debtor,  and  that  there  is  reason  to  fear 
that  he  may  absent  himself  to  the  prejudice  of  the  creditor. 

138. 

134).  ART.  364.  The  petition  for  attachment  having  been  made,  (lie- 
Judge  shall  immediately  serve  notice  upon  the  debtor,  proceeding  to  his 


25 

house  if  necessary,  in  order  that  he  may  furnish  bond,  which  shall  consist 
of  mortgages  or  pledges  whose  value  is  sufficient  to  cover  the  results  of 
the  suit,  or  a  sufficient  surety  who  shall  become  liable  for  the  amount  of 
the  judgment  which  may  be  obtained. 

135).  ART.  365.  The  attachment  obliges  the  debtor  to  remain  in  the 
place  of  the  action  during  its  course,  and  he.  cannot  absent  himself  with- 
out the  permission  of  the  Judge  and  without  leaving  an  attorney  duly 
instructed  and  provided  with  funds  and  subject  to  the  result  of  the 
action,  furnishing  a  surety,  to  the  satisfaction  of  the  Judge,  to  answer 
that  the  attorney  will  perform  the  duties  imposed  upon  him ;  but  neither 
the  debtor,  nor  the  attorney,  nor  the  surety  can  be  confined,  detained  or 
arrested. 

136).  ART.  366.  If  the  person  subject  to  the  attachment  should 
absent  himself  notwithstanding  the  security  given  not  to  leave  the  place 
where  the  suit  is  pending,  he  shall  be  adjudged  to  pay  what  may  be 
demanded  as  stated  in  the  petition  for  his  attachment,  without  prejudice 
to  the  penalty  which,  by  reason  of  disobeying  the  Judge,  the  person  sub- 
ject to  the  attachment  may  have  incurred ;  and  to  his  arrest,  by  any  of 
the  Judges  or  authorities  en  route,  by  virtue  of  a  requisition  issued  by  the 
Judge  who  decreed  the  attachment,  after  the  institution  of  the  criminal 
proceedings  which  may  lie,  and  without  prejudice  to  the  party  interested 
bringing  the  civil  action  which  may  lie. 

137).  ART.  367.  It  shall  be  understood  that  the  person  attached  has 
absented  himself,  for  the  purposes  of  the  preceding  article,  when,  having 
been  summoned  on  the  petition  of  the  complainant  by  a  personal  citation 
or  a  writ  left  and  posted  in  the  dwelling  place  of  the  person  subject  to 
attachment,  if  he  should  not  be  found,  and  after  having  called  upon  his 
surety,  and  granted  him  a  term  of  one  day  to  produce  him,  he  should  not 
within  two  days  bring  him  before  the  Judge  or  his  Secretary. 

138).  ART.  368.  If  eight  days  shall  have  elapsed  since  the  attach- 
ment was  ordered  and  the  complainant  should  not  have  instituted  his 
action,  the  Judge  shall  declare  the  attachment  vacated,  and  cannot  again 
decree  it  for  the  same  reason,  and  the  person  attached  shall  be  entitled  to 
the  recovery  of  loss  and  damages. 

139).  ART.  369.  When  the  debtor  shall  not  have  or  shall  not  desire 
to  furnish  realty,  nor  pledges,  nor  a  sufficient  surety  to  answer  for  the 
results  of  the  suit,  the  intimation  of  the  Judge  shall  be  sufficient  to 
prevent  him  from  absenting  himself  from  the  place,  and  if  he  should 
absent  himself  before  the  conclusion  of  the  suit,  the  Judge  shall  proceed 
against  the  defendant  in  accordance  with  the  provisions  of  article  366.* 

140).  ART.  370.  The  defendant  whose  attachment  may  have  been 
requested,  shall  have  the  right  to  demand  that  the  complainant  or 
plaintiff  secure  to  the  satisfaction  of  the  Judge  the  loss  and  damages 

*  Ordinal  136. 


26 

occasioned  by  the  attachment,  in  the  event  that  the  charge  against  the 
defendant  should  be  dismissed.  If  the  complainant  should  not  furnish 
the  security  stated,  the  defendant  is  relieved  from  the  security  and  obli- 
gation of  the  attachment. 

141).  ART.  371.  The  order  or  intimation  of  attachment  may  be  ap- 
pealed from  in  a  devolutive  effect  only,  it  being  necessary  to  apply  to  the 
superior  authority  with  a  copy  of  what  may  be  pertinent,  made  at  the 
cost  of  the  appellant. 

§  2. 
Deposit  or  Sequestration. 

142).  ART.  372.  In  order  to  avoid  that  the  suit  be  illusory  in  its 
effects,  if  the  thing  sued  for  were  a  movable  or  live  stock,  and  there  is 
reason  to  fear  that  the  person  having  possession  thereof  may  remove, 
damage  or  dissipate  it,  this  being  proved  by  the  plaintiff  by  means  of 
the  summary  testimony  of  two  or  more  witnesses,  the  Judge  shall  order 
that  the  thing  be  deposited  or  placed  in  sequestration,  under  the  charge 
of  a  responsible  person  enjoying  good  credit. 

Expressly  repealed  by  article  338  of  Law  57  of  1887,  and  subrogated 
by  the  following: 

143).  ART.  19  of  Law  105  of  1890.  In  order  to  avoid  that  the  suit 
be  illusory  in  its  effects,  when  the  movable  things  the  subject  of  the  suit 
or  which  it  is  desired  -to  recover  judicially,  can  be  removed,  transported, 
concealed,  damaged  or  dissipated,  the  person  believing  himself  entitled 
to  their  recovery,  may  demand  of  the  Judge  of  the  place  where  the 
things  may  be,  and  after  swearing  not  to  proceed  maliciously,  the 
sequestration  or  deposit  thereof  in  safe  hands ;  a  deposit  which  shall  be 
carried  out  wherever  the  person  petitioning  therefor  presents  a  soli- 
dary surety,  to  the  satisfaction  of  the  Judge,  to  answer  for  the  loss  and 
damage  which  the  deposit  or  sequestration  may  cause. 

146,    147,    154,    158,   159. 

Supplemented  by  the  following  article : 

144).  ART.  20  of  Law  105  of  1890.  In  the  cases  of  the  preceding 
article  and  of  article  374*  of  the  Judicial  Code,  a  request  may  be  made  of 
the  Judge  of  competent  jurisdiction  to  take  cognizance  of  the  cause,  to 
direct  the  deposit  or  sequestration  of  the  movable  property  of  UK-  de 
fendant,  even  before  the  institution  of  the  suit;  and  this  having  been 
done,  it  shall  be  vacated  if  the  person  who  requested  it  does  not  pre- 
sent to  said  Judge  the  proper  complaint  within  three  days  next  afu-r 
the  deposit  was  made.  If  the  complaint  should  not  be  presented  within 
the  period  fixed,  the  person  obtaining  the  deposit  shall  be  obliged  to  in 

*  Ordinal  i  .\(>. 


27 

demnify  the   damages  which   the    respective  person    interested    may 
prove  that  he  suffered. 

158,  159,  160. 

145).  ART.  373.  If  the  thing  sued  for  were  realty,  and  the  com- 
plainant should  have  obtained  a  decision  in  his  favor  in  the  first  instance, 
the  thing  shall  also  be  placed  in  sequestration,  if  there  should  be  reason 
to  fear  that  the  person  in  whose  possession  it  may  be  will  damage  it,  or 
sell  or  dissipate  its  fruits. 

154,  158,  159. 

146.)  ART.  374.  The  deposit  of  the  property  of  the  defendant  may 
also  be  decreed,  to  an  amount  sufficient  to  cover  the  sum  sued  for  and 
the  costs,  in  the  event  that  the  complainant  prove,  even  though  in  a 
summary  manner:  i.  That  he  actually  is  the  creditor  of  the  amount 
sued  lor;  and  2.  That  the  debtor  intends  to  damage,  remove,  misap- 
propriate or  alienate  his  property,  or  that  such  property  is  in  such  a  bad 
condition  through  his  maladministration,  that  it  is  liable  to  disap- 
pear or  not  be  sufficient  upon  the  termination  of  the  suit  to  pay  the 
debt  and  the  costs. 

144,  158,  159. 

147).  ART.  375.  The  provisions  contained  in  the  following  articles 
shall  be  observed  in  every  case  of  a  judicial  deposit. 

148).  ART.  376.  When  the  deposit  or  retention  of  the  salary  of  an 
employee  or  of  any  other  wages,  pension  or  emolument  is  ordered,  only 
one-half  the  amount  thereof  shall  be  affected. 

149).  ART.  377.  Any  excess  in  the  deposit  renders  the  Judge  liable, 
and  the  decree  ordering  such  deposit  must  be  amended  as  soon  as  the 
excess  is  established  in  a  summary  manner. 

150).  ART.  378.  When  the  property  ordered  deposited  should  be  in 
the  possession  of  a  third  person  and  an  order  is  issued  to  the  latter  to 
retain  the  same,  he  shall  be  constituted  a  depositary  or  sequestrator, 
with  the  legal  obligations. 

151).  ART.  379.  The  Judge  to  whom  another  Judge  shall  communi- 
cate the  retention  of  some  property  or  rights  of  the  defendant,  must 
enforce  it,  for  the  results  of  the  suit  in  which  it  was  decreed. 

152).  ART.  380.  The  deposit  shall  never  be  ordered  in  a  civil  cause 
without  a  petition  of  a  party,  reserving  the  cases  expressly  excepted 
in  this  Code.  Any  incidental  issue  relating  to  the  deposit  shall  be  kept 
in  a  separate  record,  it  shall  not  stay  the  principal  cause,  and  upon  the 
conclusion  of  the  incidental  issue,  the  record  thereof  shall  be  embod- 
ied in  the  process. 

981  subdivisions  5  and  7,  1153  subdivision  i,  1305. 


28 

153)-  ART.  381.  If  the  sequestration  of  realty  should  be  requested, 
it  shall  be  decreed  after  a  hearing  of  the  defendant  and  the  person  hold- 
ing the  estate,  to  each  of  whom  the  request  therefor  shall  be  referred 
for  a  period  of  forty-eight  hours ;  and  if  either  of  them  should  object,  the 
Judge  shall  take  evidence  upon  the  issue  for  a  period  of  three  days,  upon 
the  expiration  of  which  he  shall  pass  on  the  sequestration.  The  ruling 
upon  the  sequestration  may  be  appealed  from  in  a  suspensive  effect  by 
the  defendant,  and  by  the  other  persons  interested  in  a  devolutive  effect 
only. 

For  the  purposes  of  this  article  as  movables  are  considered  all  vessels, 
whatever  be  their  class  or  size.  They  may,  therefore,  be  sequestrated 
without  a  hearing  of  the  opposite  party;  but  the  sequestration  of  a 
vessel  about  to  sail  shall  not  be  ordered  unless  security  be  furnished  to 
answer  for  the  results  of  the  suit,  to  the  satisfaction  of  the  Judge  and 
under  his  liability. 

158,  159- 

154).  ART.  382.  The  sequestration  having  been  ordered,  before 
being  carried  out  it  shall  be  communicated  to  the  party  against  whom 
it  may  have  been  requested,  if  present ;  and  it  shall  be  suspended  at  any 
stage,  if  the  person  responsible  shall  furnish  security  to  the  satisfaction 
of  the  Judge,  or  deposit  in  money  a  sum  equal  to  that  which  it  is  desired 
to  secure  by  the  sequestration. 

158- 

155).  ART.  383.  An  inventory  shall  be  made  of  the  things  sequestrated, 
which  shall  be  added  to  the  record.  The  inventory  shall  be  subscribed 
by  the  Judge,  the  parties  and  the  sequestrator  or  sequestrators,  and 
shall  be  authenticated  by  the  Secretary  of  the  Judge. 

159- 

156).  ART.  384.  The  sequestrators  of  industrial  establishments  or  of 
estates  (haciendas}  of  any  kind,  have,  in  addition  to  the  general  obliga- 
tions of  depositaries,  the  special  obligations  not  to  interrupt  the  works 
of  the  establishment  or  estate,  see  to  the  preservation  of  all  the  assets, 
keep  a  punctual  and  daily  account  of  all  the  receipts  and  disbursements, 
prevent  any  disorder,  keep  in  deposit  the  free  part  of  the  products,  after 
deducting  the  costs  of  production,  and  to  furnish  an  account  and  stall- 
men  t  of  the  trust  upon  the  conclusion  thereof,  and  whenever  calk  <1 
upon  to  do  so. 

987,  1097. 


29 

157)-  ART.  385.  Either  of  the  parties  may  demand  the  removal  of  the 
sequestrator,  by  summarily  proving  malversation  or  abuse  in  the  dis- 
charge of  the  trust.  This  issue  shall  be  heard  and  decided  as  an  ordi- 
nary interlocutory  issue  and  with  the  hearing  of  the  sequestrator. 

The  four  articles  which  follow  are  additional : 

158).  ART.  21  of  Law  105  of  1890.  The  judicial  deposit  consists  in  the 
actual  delivery  which  the  Judge  makes  to  the  depositary  of  the  thing 
whose  deposit  has  been  ordered.  The  deposit  shall  not,  therefore,  be 
considered  as  made  by  the  statement  of  the  depositary  that  he  con- 
siders the  thing  received.  If  the  property  to  be  deposited  should  be 
real,  the  delivery  thereof  to  the  depositary  shall  be  effected  with  a  cita- 
tion of  the  adjoining  owners  who  may  be  on  their  respective  tenements 
at  the  time  the  deposit  is  effected. 

150,  151,  1068.     2329  and  2276  of  the  Civil  Code. 

159).  ART.  22  of  Law  105  of  1890.  A  judicial  deposit  having  been 
made,  a  record  of  the  act  shall  always  be  made,  evidencing  the  actual 
delivery  of  the  thing  to  the  depositary.  Such  copies  shall  be  made  of 
this  record  as  the  depositary  or  the  parties  may  request,  which  copies 
shall  be  authenticated  by  the  Judge  and  the  Secretary. 

The  Judge  or  Justice  authorizing  a  deposit,  shall  be  liable  for  the 
crime  of  falsity  if  from  the  record  of  the  deposit  the  actual  delivery  of 
the  thing  shall  appear,  without  such  delivery  having  been  made. 

1 60).  ART.  23  of  Law  105  of  1890.  The  judicial  deposit  terminates  by 
virtue  of  the  actual  delivery  of  the  thing  deposited  to  the  person  to 
whom  it  may  correspond;  a  delivery  which  shall  be  made  by  the  Judge 
of  the  cause,  even  though  the  thing  should  be  in  the  possession  of  another 
depositary  appointed  in  another  action,  unless  the  latter  depositary 
shall  present  a  copy  of  the  record  of  the  deposit  made  with  him,  of  a 
date  prior  to  that  which  the  Judge  making  the  delivery  may  have  made. 
If  the  depositary  opposing  the  latter  should  present  such  copy,  of  a 
prior  date,  the  delivery  shall  be  stayed ;  but  the  Judge  shall  adopt  the 
measures  which  he  may  deem  proper  to  convince  himself  that  such  copy 
is  authentic  and  that  the  deposit  to  which  it  refers  still  continues.  If 
either  of  these  two  conditions  should  be  absent,  the  Judge  shall  con- 
summate the  delivery  decreed,  and  shall  impose  a  fine  of  one  hundred 
pesos  upon  the  depositary  who  opposed  it. 

161).  ART.  24  of  Law  105  of  1890.  The  delivery  of  a  thing  which  was 
deposited,  shall  be  rescinded  at  once,  without  hearing  any  person,  if 
there  be  presented  to  the  Judge  who  may  have  made  it  an  authentic 
copy  of  a  record  of  a  deposit  of  a  date  prior  to  that  established  by  the 
said  Judge  in  the  suit  in  which  the  delivery  may  have  been  made ;  but 
there  must  appear  at  the  foot  of  the  said  authentic  copy,  even  though 
the  paper  be  not  competent,  a  certificate  authorized  by  the  respective 


30 

Judge  and  his  Secretary,  with  a  statement  of  the  date,  in  which  it  shall 
appear  that  the  deposit  to  which  the  record  refers  still  subsists.  With 
out  this  requisite,  the  said  copy  shall  produce  no  effect. 

The  rescission  referred  to  may  be  requested  by  the  plaintiff,  the 
auctioneer  (rematador),  the  person  who  by  a  judgment  may  have  been 
declared  as  entitled  to  the  thing,  and  subsidiarily  the  original  depositary- 
In  the  certificate  referred  to  in  the  preceding  paragraph,  the  character 
of  such  persons  shall  be  stated. 

§3 
Exhibitor y  Action. 

162).  ART.  386.  The  defendant  is  obliged  to  exhibit  to  the  Judge  the 
thing  for  which  he  is  sued,  in  the  presence  of  the  plaintiff,  when  the  latter 
shall  so  require. 

1 68. 

163).  ART.  387.  When  the  thing  sued  for  is  confounded  with  one  or 
more  others  of  the  defendant's,  so  that  the  exhibitory  action  cannot  be 
carried  out  without  the  presentation  of  all  of  these  things,  the  defendant 
may  be  obliged  to  present  them  all. 

164).  ART.  388.  If  the  thing  the  subject  of  the  suit  should  be  realty 
and  the  plaintiff  should  request  that  the  holder  thereof  grant  him  per- 
mission to  enter  thereon  to  take  measures,  examine  the  boundaries  or 
for  any  other  innocent  purpose,  useful  to  the  petitioner,  the  Judge  shall 
grant  the  request  with  the  precautions  and  warnings  necessary,  in  order 
to  avoid  loss  and  damage  to  the  possessor. 

165).  ART.  389.  He  who  shall  have  a  testament  in  which  another  shall 
claim  to  be  an  instituted  heir,  or  have  an  interest,  and  in  general,  every 
person  who  by  reason  of  interests,  company  or  another  similar  cause 
shall  have  in  his  possession  documents  from  which  others  can  deduce 
effective  rights,  shall  be  obliged  to  present  them. 

1 66).  ART.  390.  Persons  not  litigating  shall  not  be  obliged  lo  exhibit 
private  documents  or  correspondence  of  their  exclusive  ownership, 
reserving  the  right  vested  in  the  person  who  may  need  them,  which  he 
may  enforce  in  the  respective  suit.  If  they  should  be  disposed  to  c\ 
hibit  them  voluntarily,  they  shall  not  be  obliged  to  produce  them  in  the 
office  of  the  Secretary,  but  at  their  request  the  Secretary  shall  proceed 
to  their  houses  or  offices  to  make  certified  copies  thereof. 

167).  ART.  391.  The  party  having  in  his  possession  documents  or 
other  objects  which  the  opposite  party  may  deem  conducive  to  a  prod" 
of  his  rights  of  action  or  exceptions,  is  obliged  to  produce  ihcm  before 
the  Judge,  and  permit  that  copies  thereof  be  made,  whenever  the  party 


interested  shall  so  request,  stating  what  he  intends  to  prove  with  the 
document  or  thing  requested. 

If  the  party  in  possession  of  the  document  or  thing  whose  exhibition 
is  requested,  should  not  present  it,  as  stated,  the  act  which  it  was  de- 
sired to  prove  with  said  documents  shall  be  considered  as  proved,  after 
full  and  sufficient  proof  of  the  document  or  thing  solicited  being  in  the 
possession  of  the  said  party. 

1 68).  ART.  392.  In  all  the  cases  mentioned  in  this  paragraph,  the 
individual  who  shall  refuse  to  make  the  production  judicially  decreed, 
shall  be  liable  for  the  consequent  damages  to  the  party  who  may  have 
requested  the  production,  after  full  proof  that  the  thing  which  he  re- 
fuses to  produce  is  in  the  possession  of  said  individual. 

169. 

169).  ART.  393.  All  that  relates  to  the  exhibitory  action  shall  be  con- 
sidered as  an  incident  of  the  principal  action,  and  shall  be  heard  and 
decided  as  an  ordinary  interlocutory  issue,  excepting  the  action  for 
damages  referred  to  in  the  preceding  article,  which  shall  be  heard  as  an 
ordinary  action,  for  the  purpose  of  fixing  the  amount  of  damages. 

584,  830 

§4- 

Assent  (Asentamiento). 

170).  ART.  394.  If  within  the  term  granted  the  defendant  by  this 
Code  to  make  answer,  he  should  fail  to  do  so,  the  plaintiff  may  avail 
himself  of  the  way  of  assent  or  proof  in  default. 

176. 

171).  ART.  395.  The  way  of  assent  consists  in  the  seizin  and  posses- 
sion which  the  Judge  gives  the  plaintiff  of  the  thing  he  claims,  or  of 
some  property  of  the  defendant  by  reason  of  the  default  of  the  latter  in 
failing  to  appear  or  not  making  answer  to  the  complaint. 

172).  ART.  396.  When  the  suit  is  based  upon  a  real  right  of  action, 
the  thing  sued  for  in  the  said  case  of  default  on  the  part  of  the  defendant, 
shall  be  delivered  to  the  plaintiff,  and  when  it  is  based  upon  a  personal 
right  of  action,  movable  property  or,  in  the  absence  thereof,  real  prop- 
erty belonging  to  the  defendant  shall  be  given  him,  to  the  amount  of  the 
debt. 

173).  ART.  397.  If  the  defendant  should  appear  to  answer  the  com- 
plaint within  two  months  after  the  conclusion  of  the  term  within  which 
he  should  have  done  so,  if  the  action  were  a  real  one,  and  within  a  month, 
if  it  were  a  personal  one,  the  effects  of  the  default  shall  cease,  and  his 


32 

property  shall  be  returned  to  him,  the  cause  being  continued  according 
to  the  ordinary  procedure. 

174).  ART.  398.  Should  the  defendant  fail  to  appear  within  the  term 
mentioned  in  the  preceding  article,  the  plaintiff  shall  be  considered  the 
real  possessor  of  the  property,  and  shall  not  be  obliged  to  answer  to  the 
defendant  as  to  the  possession  thereof,  but  as  to  its' ownership  only. 

175).  ART.  399.  If  the  defendant  should  have  an  attorney  or  legal 
representative  in  the  place  where  the  proceedings  are  held,  he  may  pro- 
ceed against  the  latter  for  the  value  of  the  damages  which  he  may  have 
suffered  by  reason  of  the  assent  for  which  said  attorney  or  representa- 
tive may  have  been  responsible,  through  his  negligence  in  making 
answer  to  the  complaint. 

§5- 
Proof  in  Default. 

176).  ART.  400.  If  the  complaint  having  been  served  upon  the  de- 
fendant, the  latter  should  not  make  answer  thereto  within  the  legal 
term,  if  the  complainant  should  prefer  to  the  way  of  assent,  the  proof 
in  default,  he  shall  request  judgment  in  default  against  the  complainant, 
requesting  that  the  cause  be  continued  with  service  of  process  in  the 
room  of  the  court  or  Tribunal. 

844,  847,  854  to  857. 

177).  ART.  401.  If  the  plaintiff  should  avail  himself  of  the  right 
granted  him  in  the  preceding  article,  the  Judge  shall  consider  the  de- 
fault to  be  admitted,  and  shall  order  that  the  subsequent  proceedings  in 
the  case  be  served  in  the  room  of  the  court  or  Tribunal. 

857. 

178).  ART.  402.  After  the  order  referred  to  in  the  preceding  article 
shall  have  been  made,  notice  of  all  the  proceedings  in  the  action  shall  be 
served  upon  the  defendant  by  means  of  an  edict  which  shall  be  posted 
on  the  main  door  of  the  court  or  tribunal  room  for  twelve  hours,  and 
notices  served  in  this  manner  shall  have  the  same  effects,  to  the  preju- 
dice of  the  defendant,  as  the  law  assigns  to  personal  service. 

179,  1 80,  181,  194,  195. 

179).  ART.  403.  In  the  case  referred  to  in  this  paragraph,  notice  shall 
only  be  served  on  the  defendant  in  person,  or  upon  a  member  of  his 
family  or  in  his  service  who  may  be  found  in  his  house,  of  the  order  direct- 
ing the  taking  of  evidence  in  the  cause,  tin-  (k-linitive  judgment,  and  1 1n- 
decision declaring  the  latter  to  be  final. 

180    181,  KJ.S  subdivision  3. 


33 

i8o).  ART.  404.  If  the  defendant  should  not  reside  in  the  place  of 
the  action,  the  necessary  communications  or  letters  rogatory  shall  issue 
for  the  purpose  of  making  the  notifications  referred  to  in  the  preceding 
article. 

181).  ART.  405.  If  the  house  of  the  defendant  should  be  closed,  and 
it  should  not  be  possible  to  have  it  opened,  notices  of  the  order  directing 
the  taking  of  evidence,  of  the  definitive  judgment  and  of  the  decree 
declaring  the  latter  final  shall  be  served  by  means  of  a  writ  posted  on 
the  main  door. 

182).  ART.  406.  At  any  time  that  the  defendant  in  default  should 
enter  an  appearance,  while  the  suit  is  still  pending,  he  shall  be  heard 
and  justice  administered;  but  he  shall  not  have  the  right  to  have  the 
proceedings  begun  de  novo,  as  such  terms  which  may  have  expired  shall 
be  considered  as  legally  elapsed,  in  accordance  with  the  provisions  of 
this  paragraph. 


Suspension. 

183).  ART.  407.  The  complainant  has  the  right  to  request  of  the 
Judge  that  the  defendant  suspend  during  the  suit  any  transaction  or 
industrial  operation  which  might  prejudice  his  rights,  such  as  a  sale, 
assignment  or  change  in  the  form  of  the  thing  the  subject  of  the  suit. 

187,  191. 

184).  ART.  408.  The  complainant  having  proved  or  shown  the 
damage  which  might  result  to  him  by  virtue  of  the  transaction  or  oper- 
ation whose  suspension  is  requested,  the  Judge  shall  decree  it,  requiring 
the  complainant  to  furnish  a  bond  to  the  satisfaction  of  said  Judge  to 
indemnify  the  defendant  for  any  damage  resulting  from  the  suspension, 
if  the  final  judgment  in  the  main  suit  should  be  in  favor  of  the  defendant. 

185,   188,   189,   190. 

185).  ART.  409.  If  the  complainant  should  not  furnish  the  bond  re- 
ferred to  in  the  foregoing  article,  within  the  term  which  may  have  been 
granted  him  for  the  purpose,  the  suspension  decreed  shall  be  vacated 
at  once. 

1  86)  .  ART.  410.  The  bond  having  been  furnished,  the  suspension  shalJ 
continue  during  the  entire  time  of  the  suit. 

187).  ART.  411.  If  the  complaint  shall  not  have  been  filed,  the  peti- 
tion for  suspension  shall  not  be  admissible. 

1  88).  ART.  412.  The  decree  of  suspension  shall  be  served  upon  the 
defendant  and  upon  all  the  other  persons  upon  whom  it  may  be  neces- 
sary to  make  such  service,  in  order  that  it  may  be  duly  complied  with. 


34 


189).  ART.  413.  The  decree  of  suspension  may  be  appealed  from  by 
the  complainant,  but  in  a  devolutive  effect  only.  The  decree  denying 
the  suspension  may  also  be  appealed  from  by  the  plaintiff,  in  the  effects 
which  he  may  desire. 

190).  ART.  414.  At  any  stage  of  the  suit,  the  defendant  may  cause 
the  suspension  to  be  raised,  upon  giving  bond  to  the  satisfaction  of  the 
Judge,  to  compensate  the  complainant  for  all  damages. 

The  same  right  to  cause  the  suspension  to  be  raised,  under  the  con- 
dition aforesaid,  is  granted  to  any  person  who  may  be  prejudiced  there- 
by, even  though  such  a  person  be  not  the  defendant. 

191).  ART.  415.  The  right  granted  the  defendant  in  this  paragraph 
cannot  be  made  use  of  against  the  Nation. 


CHAPTER  VI. 
Notifications  and  Citations. 

192).  ART.  416.  When  the  parties  shall  not  appear  in  the  office  of  the 
respective  Secretary  to  receive  the  notifications,  one  day  after  the  pub- 
lication of  the  order  notice  of  which  is  to  be  served,  such  notice  shall  be 
served  by  means  of  an  edict,  which  shall  be  posted  in  the  office  and  in  a 
public  place  during  the  office  hours  of  a  natural  day ;  in  which  edict 
shall  be  inserted  the  date  and  the  resolutory  portion  of  the  order  or  de- 
cision. This  edict  shall  be  made  a  part  of  the  record  with  a  memoran- 
dum of  the  day  and  hour  it  was  posted  and  removed,  and  there  shall  be 
included  in  the  said  record  also  a  certificate  of  the  posting,  with  a  state- 
ment of  the  day  and  hour  when  made.  The  notice  shall  be  considered 
as  having  been  made  from  the  date  of  the  removal.* 

FIFTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

193).  ART.  4i7-t  From  the  provisions  of  the  preceding  article  are 
cxcepted  the  notices  which  follow,  which  shall  be  served  personally: 
i.  That  of  the  order  directing  the  reference  of  a  complaint;  2.  That  of  the 
order  directing  that  the  party  or  parties  be  notified  of  the  nullity  of  a 
suit  by  reason  of  causes  2  and  4  of  article  914,  and  the  first  causes  of 
articles  915  and  916  of  the  Judicial  Code;  3.  That  of  the  order  directing 
the  citation  of  a  party  for  the  purpose  of  answering  interrogatories, 
in  the  cases  of  articles  439  and  440;  and  4.  That  of  tin- divisions  in  a 


*  Expressly  repealed  by  article  338  of  Law  105  of  iS<;<>.  ;m<l  subrogated   by  ordinal 
No.  I«H. 

t  Hxpressly  repealed  by  article  ,U*  <>f  Law  105  of  (Son,  and  subrnjjaU'd    by  ordinal 

No.  195. 


35 

special  proceeding  which,  in  accordance  with  the  Judicial  Code,  must  be 
served  personally. 

The  notices  to  be  served  upon  the  person  representing  the  Depart- 
ment of  Public  Prosecution,  in  the  causes  in  which  he  takes  part,  are 
also  excepted,  and  service  thereof  shall  be  made  in  accordance  with  the 
provisions  of  No.  4  of  article  1491  of  the  Judicial  Code. 

When  the  notices  are  not  served  upon  the  representative  of  the  De- 
partment of  Public  Prosecution,  as  prescribed  in  No.  4  of  article  1491, 
the  proceedings  had  shall  be  annulled  if  the  notice  refers  to  a  decision 
of  those  which,  in  accordance  with  articles  914  and  917,  cause  the 
nullity  if  notice  thereof  be  not  served. 

The  following  article  subrogates  ordinal  No.  192. 

194).  ART.  31  of  Law  105  of  1890.  When  the  parties  shall  not  ap- 
pear in  the  respective  Secretary's  office  to  receive  the  notifications,  one 
day  after  the  decision  of  which  notice  is  to  be  served  shall  have  been 
authorized  by  the  court  or  Judge  and  Secretary,  notice  thereof  shall  be 
served  by  means  of  an  edict  which  shall  be  posted  in  the  office  and  in  a 
public  place  during  the  working  hours  of  a  natural  day ;  this  edict  shall 
include  the  date  and  the  resolutory  portion  of  the  decree  or  decision,  so 
that  the  entire  context  thereof  may  be  visible.  This  edict  shall  be 
attached  to  the  record,  with  a  note  of  the  day  and  hour  of  its  posting  and 
removal,  and  there  shall  be  embodied  in  the  same  record  a  certificate  of 
the  posting  thereof  with  a  statement  of  the  day  and  hour  when  made. 
The  notice  shall  be  considered  as  served  from  the  hour  of  the  removal. 

199,  205,  222. 

The  following  article  subrogates  ordinal  No.  193: 

195).  ART.  32  of  Law  105  of  1890.  The  following  notifications,  which 
shall  be  served  in  person,  are  excepted  from  the  provisions  of  the  preced- 
ing articles : 

1.  That  of  the  order  directing  the  reference  of  a  complaint. 

2.  That  of  the  order  directing  the  citation  of  a  party  for  the  purpose 
of  replying  to  interrogatories. 

3.  Those  of  the  orders  or  decisions  which  by  virtue  of  a  special  pro- 
vision must  be  served  in  person,  and 

4.  Those  of  the  orders  or  decisions  notice  of  which  is  to  be  served  upon 
the  representatives  of  the  Department  of  Public  Prosecution. 

197,  203,  222,  second  par.,  223,  831,  1491. 

196).  ART.  418.  The  provisions  of  the  two  preceding  articles  do  not 
apply  to  universal  actions,  in  which  notices  shall  be  served  in  the  form 
prescribed  therefor. 

227. 


36 

197)-  ART.  419.  Personal  notifications  are  served  by  communicating 
the  decision,  order  or  ruling  of  the  Judge  to  those  who  are  to  be  notified 
thereof,  a  return  being  made,  stating  in  letters  the  year,  month,  and 
even  the  hour,  if  necessary,  all  of  which  shall  be  signed,  with  their  sur- 
names, by  the  person  notified  or  a  witness  for  him,  if  he  should  not  know, 
not  be  able  or  not  wish  to  sign,  and  the  Secretary  making  the  notifica- 
tion, the  latter  stating,  under  his  name,  that  of  the  office. 

196,  206-210,  225. 

The  two  articles  which  follow  are  additional: 

198).  ART.  33  of  Law  105  of  1890.  The  Secretaries  of  the  Courts  and 
of  the  Superior  Tribunals,  may,  through  an  employee  of  the  Court  or 
Tribunal,  respectively,  and  under  the  liability  of  said  Secretaries,  have 
the  personal  notifications  served  which  the  law  prescribes,  and  which 
they  cannot  execute  in  person. 

225. 

199).  ART.  38  of  Law  105  of  1890.  A  personal  notification  must  be 
given  the  preference  in  every  case,  to  a  notification  by  edict.  Conse- 
quently, if  the  respective  persons  interested,  or  any  of  them,  should 
appear  in  the  office  of  the  Court  of  Tribunal  before  the  notification  of  an 
order  or  decision  is  made  by  edict,  the  Secretary  must  serve  the  notifi- 
cation personally. 

If  the  edict  should  already  have  been  posted,  the  notice  of  the  order 
or  decision  shall  also  be  served  personally  upon  the  person  interested  who 
may  appear  to  receive  it.  The  provisions  of  this  article  are  not  a  ground 
to  delay  the  notification  by  edict  to  those  who  do  not  appear. 

194,  205,  222,  1219. 

200).  ART.  420.  Citations  shall  always  be  made  by  means  of  notifica- 
tions. 

201).  ART.  421.  The  effects  of  the  notification  of  the  reference  of  a 
complaint  are:  i.  To  confer  the  cognizance  of  the  matter  to  the  Judge 
to  whom  the  complaint  shall  have  been  presented;  2.  To  interrupt  the 
time  for  the  prescription  of  the  action  or  thing  sued  for;  and  3.  The 
other  effects  prescribed  by  law. 

844,  847,  265,  865.     2522,  2524,  and  2539  of  the  Civil  Code. 

202).  ART.  422.  The  Secretaries,  by  means  of  a  permanent  notice, 
affixed  on  the  door  of  the  office  of  the  Secretary,  shall  inform  the  public 
of  the  hours  established  for  the  service  of  notifications ;  but  this  state- 
ment shal"  not  include  the  hours  of  the  night. 


37 

203).  ART.  423.  The  parties  and  their  attorneys  are  obliged  to  in- 
form the  Judge  of  the  cause,  of  their  dwelling  place,  and  should  they  not 
have  any,  of  the  designation  of  the  house  in  the  place  where  the  notifica- 
tions are  to  be  served  on  them.  This  designation  must  be  made  by  the 
complainant  as  soon  as  he  institutes  the  suit,  and  by  the  defendant  or 
adversary,  as  soon  as  the  first  notice  is  served  on  him. 

195  and  citations,  261  subdivision  2. 

FIFTH  AMENDMENT. 
(Of  Law  53  of  1882.) 

204).  ART.  424.  The  notification  of  definitive  judgments,  whether 
there  be  two  or  more  parties,  shall  be  made  by  an  edict  posted  in  the 
room  of  the  court  or  Tribunal,  when  a  month  shall  have  elapsed  since 
they  were  rendered  and  the  parties  or  any  of  them  should  not  have  ap- 
peared to  do  so  personally.  The  edict  shall  contain  the  resolutory  por- 
tion of  the  decision,  and  shall  be  signed  by  the  Justices  or  the  Judge 
who  rendered  it,  and  shall  remain  posted  for  five  days. 

If  the  decision  should  have  been  rendered  in  the  second  instance,  the 
edict  shall  be  posted  five  days  after  the  publication  of  such  judgment. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  following : 

205).  ART.  35  of  Law  105  of  1890.  The  notification  of  judgments  in 
all  kinds  of  suits,  provided  they  be  definitive,  whether  there  be  two  or 
more  parties,  shall  be  made  by  an  edict  posted  in  the  room  of  the  court 
or  Tribunal,  when  thirty  days  shall  have  elapsed  since  they  were  ren- 
dered, without  the  parties  or  any  of  them  not  having  appeared  in  order 
that  notice  might  be  served  in  person. 

The  edict  shall  contain  the  name  of  the  Court  or  Tribunal,  the  date 
and  the  resolutory  portion  of  the  judgment;  it  shall  be  signed  by  the 
Judge  or  by  the  Justices  who  may  have  rendered  it,  and  shall  remain 
posted  for  five  days. 

If  the  judgment  should  have  been  rendered  in  the  second  instance 
the  edict  shall  be  posted  five  days  after  the  publication  of  such  judg- 
ment. 

706. 

206).  ART.  425.  If  the  defendant  should  be  absent,  the  notification 
of  the  reference  of  the  complaint  shall  be  served  upon  him  by  letters 
requisitorial  or  by  a  writ  of  summons,  which  must  be  accompanied  by 
the  complaint,  by  the  documents  which  may  have  been  presented  there- 
with and  by  the  order  directing  the  reference,  the  originals  of  all  of  which 
must  be  sent.  But  if  there  should  be  any  risk  of  the  loss  or  miscarriage 


38 

of  the  documents  attached  to.  the  complaint,  copies  thereof  may  be 
transmitted  on  the  petition  of  the  complainant. 

195  subdivision  i,  207  to  210. 

Amended  by  the  following  article : 

207).  ART.  40  of  Law  105  of  1890.  In  the  case  of  article  425*  of  the 
Judicial  Code,  there  shall  be  attached  to  the  requisition  or  writ  of  sum- 
mons copies  of  the  complaint,  of  the  documents  which  may  have  been 
presented  therewith  and  of  the  order  directing  the  reference,  if  the  com- 
plainant should  so  request. 

208).  ART.  426.  In  the  case  of  the  preceding  article,  the  Judge  shall 
set  a  time,  taking  the  distance  into  consideration,  for  the  defendant  to 
enter  an  appearance  in  the  action;  and  upon  the  expiration  of  this 
period,  the  term  within  which  to  make  answer  to  the  complaint  shall 
begin  to  run  against  the  defendant,  if  the  communication  having  been 
returned  the  respective  return  of  the  service  of  notice  shall  appear 
therein. 

1 60 1. 

209).  ART.  427.  If  the  defendant  should  reside  abroad,  the  letters 
rogatory  or  communication  shall  be  addressed,  through  the  Executive 
Federal  Power,  to  a  Diplomatic  or  Consular  Agent  of  Colombia  or  of  a 
friendly  nation,  the  respective  provisions  of  International  Law  being 
observed.  In  the  case  of  this  article,  the  Judge  shall  extend  the  period 
of  the  summons  such  time  as  he  may  consider  necessary,  taking  into 
consideration  the  distance  and  the  greater  or  less  facility  of  communi- 
cation. 

1601. 

Supplemented  by  the  following  article: 

210).  ART.  34  of  Law  105  of  1890.  The  formalities  referred  to  in 
article  42  7  f  of  the  Judicial  Code  for  service  of  notice  of  the  com- 
plaint, and  those  which  are  to  be  observed  in  accordance  with  the  said 
Code  for  the  performance  of  any  other  proceeding  in  a  foreign  country, 
shall  not  be  indispensable  with  regard  to  the  nations  with  which  a 
different  method  of  procedure  shall  have  been  agreed  upon  by  special 
treaties. 

21 1).  ART.  428.  When  an  executory  or  ordinary  action  shall  be  directed 
against  the  property  or  person  of  one  or  more  individuals  who  shall  not 
have  been  found,  after  the  Judge  shall  have  assured  himself  of  his  com- 
petency to  take  cognizance  of  the  matter,  he  shall  cite  the  defendants 

*  Ordinal  206. 
t  Ordinal  209. 


39 

by  means  of  an  edict  which  shall  remain  posted  in  the  public  place  in 
the  court  or  Tribunal  for  a  period  of  thirty  days. 

If  the  defendant  should  not  be  a  resident  of  the  place  where  the 
action  is  brought,  and  his  domicile  should  be  known,  another  edict  shall 
be  ordered  posted  there  for  the  same  period,  and  upon  the  expiration 
thereof,  the  Judge  commissioned  shall  return  the  edict  with  a  memo- 
randum of  the  posting  and  removal  thereof. 

In  addition,  immediately  after  the  first  edict  shall  have  been  posted, 
it  shall  be  published  in  a  newspaper,  if  there  be  any,  for  three  times  at 
least,  and  if  notwithstanding  this  call  the  defendants  should  not  appear, 
the  Judge  shall  appoint  an  administrator  (defensor)  for  their  property, 
with  whom  the  suit  will  be  prosecuted. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  three  which  follow : 

212).  ART.  25  of  Law  105  of  1890.  When  any  action  whatsoever  is 
directed  against  the  property  or  the  person  of  one  or  more  persons  who 
shall  not  have  been  found,  or  who  should  be  uncertain,  after  the  Judge 
shall  have  assured  himself  of  his  competency  to  take  cognizance  of  the 
matter,  he  shall  summon  the  defendants  by  means  of  an  edict  which 
shall  be  posted  in  a  public  place  of  the  Court  or  Tribunal,  for  a  term 
of  thirty  days. 

215- 

213).  ART.  26  of  Law  105  of  1890.  If  the  defendant  or  defendants 
should  not  be  residents  of  the  place  where  the  suit  is  instituted,  and  their 
domicile  were  known,  another  edict  shall  be  ordered  posted  there  for 
the  same  term,  and  upon  the  expiration  thereof,  the  Judge  commissioned 
shall  return  the  edict  with  a  note  of  its  posting  and  removal. 

215- 

214).  ART.  27  of  Law  105  of  1890.  As  soon  as  the  edict  referred  to 
in  article  25*  shall  have  been  posted,  a  copy  thereof  shall  be  published  in 
the  official  newspaper  of  the  Department,  for  three  times  at  least ;  and 
if  notwithstanding  this  call  the  defendants  should  not  enter  an  appear- 
ance, upon  the  expiration  of  thirty  days  the  Judge  shall  appoint  for 
them  counsel,  with  whom  the  suit  shall  be  prosecuted. 

220. 

Supplemented  by  the  following  article : 

215).  ART.  28  of  Law  105  of  1890.  The  terms  of  the  preceding 
article  and  of  articles  25  and  26f  of  this  Law  shall  be  observed  whenever, 

*  Ordinal  212. 

t  Ordinals  212  and  213. 


4o 

even  though  no  action  shall  as  yet  have  been  instituted,  it  is  necessary 
to  serve  a  personal  notification  for  legal  purposes.  The  notification 
shall  be  served  upon  the  counsel  appointed. 

220. 

216).  ART.  429.  When  there  are  a  number  of  persons  interested  in  an 
affair  and  they  should  be  cited  personally,  or  by  means  of  edicts,  in 
accordance  with  the  provisions  of  the  preceding  articles,  in  the  event  of 
their  whereabouts  being  unknown,  if  they  should  not  all  of  them  ap- 
pear, the  suit  shall  be  prosecuted  with  those  entering  an  appearance, 
and  if  none  should  appear,  counsel  shall  be  appointed  for  all. 

In  all  the  cases  mentioned,  the  judgment  rendered  shall  comprise  and 
consequently  prejudice  all  those  who  may  have  been  cited,  as  if  they 
had  been  present. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

217).  ART.  29  of  Law  105  of  1890.  When  there  are  a  number  of  per- 
sons interested  in  an  affair  and  they  should  be  notified  personally,  or 
summoned  by  edicts,  in  accordance  with  the  provisions  of  the  preceding 
articles,  if  all  of  them  should  not  appear  the  action  shall  be  prosecuted 
with  those  who  do  appear,  and  if  none  appear,  counsel  shall  be  appointed 
for  all. 

In  the  cases  mentioned  in  this  article,  the  judgment  rendered  shall 
include  and  consequently  prejudice  all  those  who  may  have  been  noti- 
fied or  summoned,  as  if  they  had  been  present. 

220. 

218).  ART.  430.  In  the  case  of  the  preceding  article,  if  any  of  the 
persons  interested  should  enter  an  appearance  during  the  suit,  he  shall 
be  admitted  as  a  party  at  the  stage  at  which  it  may  be,  without  alter- 
ing its  course ;  and,  therefore,  what  may  have  taken  place  up  to  that 
time  shall  prejudice  or  benefit  him. 

219).  ART.  431.  The  defenders  who  may  be  appointed  in  the  cases 
mentioned,  are  liable  to  the  persons  they  represent,  under  the  same 
terms  as  attorneys  in  fact.  The  person  defended  is  obliged  to  pay,  upon 
the  appraisal  by  experts,  the  value  of  the  defense,  and  also  the  costs 
which  the  plaintiff  may  furnish  for  the  continuation  of  the  suit. 

The  plaintiff  is  obliged  to  furnish  the  defender  what  may  be  necessary 
for  said  expenses,  and  if  he  should  excuse  himself  from  so  doing,  tin* 
Bourse  of  the  suit  shall  be-  stayed. 

214,  215,  217. 


220).  ART.  432.  Those  who  cannot  appear  in  court  for  themselves 
cannot  be  appointed  defenders  of  absentees. 

6 1  et  seq. 

SIXTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

221).  ART.  433.  In  suits  in  which  there  are  more  than  three  litigants, 
all  notifications,  with  the  exception  of  that  of  the  reference  of  the  com- 
plaint, shall  be  made  by  edicts.  For  each  notification,  the  edict  shall  be 
posted  during  the  working  hours  of  a  natural  day ;  but  if  the  notification 
were  of  a  final  judgment,  the  term  of  the  edict  shall  be  five  days,  and  it 
shall  be  signed  by  the  Justices  or  by  the  Judge  who  issued  the  order  of 
which  notice  is  served,  in  accordance  with  the  provisions  of  art.  424  of 
the  Judicial  Code. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

222).  ART.  36  of  Law  105  of  1890.  In  suits  in  which  there  are  more 
than  three  litigants,  all  notifications,  with  the  exception  of  that  of  the 
reference  of  the  complaint,  shall  be  made  by  edict,  and  it  shall  not  be 
necessary  that  the  day  elapse  referred  to  in  article  31  of  this  Law  in 
order  to  make  them  in  the  form  indicated.  For  each  notification,  the 
edict  shall  be  posted  the  working  hours'  of  a  natural 'day;  but  if  the 
notice  were  of  a  final  judgment,  the  term  of  the  edict  shall  be  five  days, 
and  it  must  be  signed  respectively,  by  the  Justices  or  the  Judge  who 
may  have  issued  it,  in  accordance  with  the  provisions  of  the  preceding 
article. 

If  the  order  of  which  notice  is  to  be  served  directs  that  one  of  the 
parties  be  cited  for  the  purpose  of  answering  interrogatories,  and  the 
latter  shall  not  personally  have  entered  an  appearance  in  the  action,  but 
shall  have  done  so  through  an  attorney  in  fact,  such  notification  must 
also  be  served  personally. 

194,  195,  subdivision  2,  205,  199. 

The  article  which  follows  is  additional : 

223).  ART.  39  of  Law  105  of  1890.  When  a  suit  shall  have  been 
suspended  or  stayed  for  more  than  six  months,  the  first  decisions  ren- 
dered therein  shall  be  served  personally  upon  the  litigants,  whatever  be 
their  number. 

224) .  ART.  434.  In  the  notifications,  the  parties  shall  not  be  permitted 
to  make  arguments  or  advance  reasons ;  all  that  can  take  place  therein 
is  the  consent  or  the  contradiction  in  the  case  of  an  impediment  on  the 
part  of  the  Judge  or  Justice,  the  interposition  of  an  appeal,  the  appoint- 


42 

ment  of  a  depositary,  expert,  etc.,  or  another  act  of  the  nature  of  those 
expressed. 

225).  ART.  435.  In  every  case  in  which  the  party  shall  excuse  (avoid) 
the  notification  manifestly,  or  should  not  wish  or  not  know  how  to  sign, 
the  Secretary  shall  be  accompanied  by  a  witness,  who  shall  sign  the 
return,  a  note  to  this  effect  being  made  in  the  record,  with  a  statement 
of  the  date,  which  shall  be  considered  as  a  notification  for  all  legal  pur- 
poses. 

198. 

226).  ART.  436.  Whenever  a  person  shall  appear  in  a  suit  in  repre- 
sentation of  a  number,  he  shall  be  considered  as  a  single  individual  for  the 
purposes  of  the  notices  and  other  similar  proceedings  in  the  suit. 

227).  ART.  437.  The  provisions  of  this  Chapter  must  be  understood 
without  prejudice  to  what  may  be  expressly  provided  in  the  special 
proceedings  as  to  the  mode  of  serving  notifications. 

196. 

228).  ART.  438.  Notifications  which  may  be  made  in  any  other 
manner  than  those  mentioned  in  this  Code,  are  null ;  and  the  Secretary 
who  may  make  or  tolerate  them,  shall  incur  a  fine  not  to  exceed  fifty 
pesos,  which  the  Judge  or  Tribunal  of  the  cause  shall  impose  upon  him, 
upon  the  mere  notice  of  the  notification  illegally  made,  and  he  shall  be 
liable,  furthermore,  for  the  damage  which  may  have  been  caused 
through  his  fault. 

Nevertheless,  if  the  person  upon  whom  the  notification  was  to  have 
been  served  should  expressly  state  in  court  knowledge  of  the  order,  such 
statement  shall,  from  the  time  it  is  made,  have  the  effects  of  a  notifica- 
tion, as  if  the  latter  had  been  legally  made ;  but  the  Secretary  shall  not 
thereby  be  relieved  from  the  liability  established. 

Supplemented  by  the  following  article : 

229).  ART.  30  of  Law  105  of  1890.  If  the  party  to  be  notified  of  an 
order  or  decision,  should  express  knowledge  thereof  before  the  Judge  of 
the  cause  in  writing,  said  statement  shall  from  said  moment  produce  the 
effects  of  a  legal  notification  for  the  person  making  it. 

The  following  article  is  supplemental : 

230).  ART.  37  of  Law  105  of  1890.  As  a  general  rule  no  resolution 
produces  any  effects  before  notice  thereof  shall  have  been  legally  served 
on  the  parties. 

330. 


43 

CHAPTER  VII. 

Interrogatories  (Posiciones) . 

231).  ART.  439.  If  the  defendant  should  request,  before  making 
answer  to  the  complaint,  that  the  complainant  answer  interrogatories 
(absueha  posiciones),  the  Judge  shall  so  direct,  without  thereby  inter- 
rupting the  term  for  the  answer ;  but  he  shall  order  them  answered  im- 
mediately after  they  shall  have  been  requested.  The  complainant 
having  been  cited  in  such  case,  it  shall  be  his  duty  to  proceed  to  the 
office  of  the  Judge  at  the  hour  which  may  be  set  therefor,  in  order  to 
reply  to  the  interrogatories. 

234,  236,  237,  247,  255,  256,  258. 

The  following  article  is  additional : 

232).  ART.  27  of  Law  100  of  1892.  The  petition  for  the  admission  of 
interrogatories  in  the  suit  is  admissible  only  within  the  respective  terms 
for  the  admission  of  evidence. 

Article  439*  of  the  Judicial  Code  is  thus  supplemented. 

233).  ART.  440.  The  complainant  is  forbidden  to  request  the  pro- 
pounding of  interrogatories,  before  issue  joined.  The  following  cases 
are  excepted :  i .  If  the  purpose  of  the  interrogatories  were  to  establish 
the  civil  capacity  of  the  person  to  be  sued;  2.  If  the  interrogatories 
relate  to  the  dilatory  exceptions  pleaded  by  the  defendant;  and  3.  If 
the  purpose  thereof  were  the  verification  (acknowledgment)  of  a  signa- 
ture or  document  by  which  the  person  whom  it  is  intended  to  sue  or 
who  has  already  been  sued  may  have  obligated  himself  in  favor  of  the 
complainant. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subro- 
gated  by  the  following : 

234).  ART.  41  of  Law  105  of  1890.  Before  the  institution  of  the  suit, 
the  presumed  complainant  may  propound  interrogatories  by  articles 
once  only,  to  the  person  he  is  about  to  sue,  upon  any  questions  con- 
nected with  the  matter  which  is  to  be  the  subject  of  the  suit.  After  the 
latter  shall  have  been  instituted,  any  of  the  parties  may  request  that 
interrogatories  be  propounded,  once  during  the  incidental  issue  on 
dilatory  exceptions,  and  another  time,  in  each  of  the  instances  of  the 
suit. 

231,  236,  237,  247,  255,  256,  258,  392. 
*  Ordinal  231. 


44 

SEVENTH  AMENDMENT. 

(Of  Law   46   of    1876.) 

235).  ART.  441.*  In  ordinary  actions,  after  issue  joined,  both  parties 
have  the.  right  to  propound  interrogatories  in  writing  to  the  opposite 
party  as  to  the  facts  the  subject  of  the  evidence,  once  only  in  each 
instance. 

The  following  article  is  supplemental: 

236).  ART.  42  of  Law  105  of  1890.  More  than  twenty  articles  cannot 
be  included  in  one  interrogatory. 

237).  ART.  442.  The  article  must  be  drafted  clearly,  each  article 
referring  to  one  fact  only,  in  so  far  as  possible,  and  being  so  presented 
that  the  party  interrogated  may  respond  simply  whether  what  is  asked 
is  or  is  not  so. 

242,  245  to  248. 

238).  ART.  443.  The  party  shall  be  interrogated  in  person  by  the 
Judge  of  the  cause,  or  by  the  one  to  whom  this  duty  may  be  entrusted, 
if  the  party  should  not  reside  in  the  same  place,  after  taking  oath  to  tell 
the  truth.  The  respective  Judge  shall  set  a  day  and  hour  for  the  ap- 
pearance of  the  party,  upon  whom  personal  notice  shall  be  served. 

In  the  event  of  a  legitimate  impediment  preventing  the  appearance 
of  the  party,  the  Judge  shall  proceed  to  the  place  where  said  person  may 
be  detained. 

1599- 

239).  ART.  444.  The  interrogatory  must  be  presented  open  or  under 
closed  and  sealed  cover,  and  in  the  latter  case  it  cannot  be  opened  until 
reply  is  to  be  made  thereto. 

If  it  shall  have  been  presented  open,  so  that  the  party  shall  have  been 
able  to  prepare  his  answer,  the  presentation  of  such  answer  in  writing 
shall  not  be  permitted. 

240,  251. 

Amended  by  the  following  article : 

240).  ART.  43  of  Law  105  of  1890.  When  the  articles  are  presented 
sealed,  and  are  to  be  propounded  without  the  place  where  the  suit  is 
being  prosecuted,  which  shall  always  be  done  when  the  person  interro- 
gated should  not  be  there,  the  Judge  taking  cognizance  of  the  cause 
shall  open  the  package  for  the  sole  purpose  of  qualifying  the  same,  and 

*  Expressly  repealed  by  article  .^.H  of  Law  105  of  1890,  and  subrogated  by  the 

see. .IK!  part  <>f  ordinal  No.  234. 


45 

shall  then  send  it  sealed  to  the  Judge  commissioned.  This  is  not  an 
obstacle  to  the  right  of  the  person  propounding  the  interrogatory  from 
objecting  to  the  resolution  of  the  Judge  by  which  he  redrafts  one  or  more 
of  them,  an  objection  which  he  may  make  after  reply  shall  have  been 
made  thereto  and  they  shall  have  been  referred  to  him. 

252. 

241).  ART.  445.  In  every  case,  each  article  shall  be  read  separately, 
the  answer  being  immediately  put  in  writing,  and  in  the  absence  of  any 
answer,  the  respective  return  shall  be  written.  After  each  answer  shall 
have  been  written,  it  shall  be  read  to  the  person  interrogated,  and  after 
being  approved  by  him,  it  can  not  be  changed  nor  amended. 

Supplemented  by  the  following  article : 

242).  ART.  46  of  Law  105  of  1890.  If  upon  an  article  being  read  to 
the  person  interrogated,  he  should  state  that  he  does  not  understand  the 
question,  the  Judge  shall  make  the  proper  explanations.  If  the  articles 
should  comprise  two  or  more  facts,  which  may  be  separated  for  the  pur- 
poses of  article  442*  of  the  Judicial  Code,  the  Judge,  on  his  own  motion 
or  on  the  petition  of  the  deponent,  shall  make  the  separation  and  each 
partial  answer  shall  be  written  immediately  after  the  respective  part  of 
the  article. 

243).  ART.  446.  If  among  the  questions  presented  under  sealed  cover 
there  should  be  any  for  replying  to  which  the  party  should  state  that  it 
is  necessary  for  him  to  recollect  some  facts,  or  examine  some  memo- 
randa or  documents,  and  should  request  time  in  which  to  do  so,  the 
Judge  shall  grant  him  such  time,  if  he  should  deem  it  reasonably  neces- 
sary, suspending  the  proceedings  and  again  sealing  the  wrapper  of  the 
interrogatory. 

The  next  two  articles  are  supplemental: 

244).  ART.  47  of  Law  105  of  1890.  When  the  person  interrogated 
should  state  that  he  ignores  or  does  not  remember  the  fact  upon  which 
he  is  questioned,  and  taking  into  consideration  his  age,  his  state  of 
health,  his  sex  and  condition,  the  fear  and  degree  of  intelligence  he  may 
show,  the  time  the  act  occurred,  and  the  intervention  he  may  have  had 
therein,  it  may  be  presumed,  in  the  opinion  of  the  Judge,  that  his  answer 
is  a  sincere  one,  he  shall  in  a  circumspect  manner,  make  the  proper 
indications  to  assist  the  person  interrogated  to  recollect  the  facts ;  and 
he  shall  even  ask  him,  taking  into  consideration  the  importance  of  the 
fact  in  question,  if  by  consulting  some  memoranda  or  documents  he 
could  recollect  the  facts,  and  if  the  person  interrogated  should  agree 
thereto,  the  Judge  shall  proceed  as  provided  in  article  446f  of  the  Judicial 
Code. 


*  Ordinal  237. 
t  Ordinal  243. 


46 

245)-  ART.  48  of  Law  105  of  1890.  In  the  case  of  the  preceding 
article,  the  reasons  which  the  person  interrogated  may  give  for  not 
answering  the  question  categorically,  shall  be  made  a  matter  of  record, 
and  if  they  should  be  sufficient,  taking  into  consideration  the  circum- 
stances referred  to,  the  Judge  shall  not  make  the  declaration  of  confes- 
sion referred  to  in  article  449*  of  the  Judicial  Code,  but  if  he  should 
note  a  spirit  to  evade  the  question,  the  provisions  of  said  article  shall  be 
strictly  observed. 

237,  246,  248. 

246).  ART.  447.  The  party  cited  for  the  purpose  of  making  answer  to 
an  interrogatory  shall  answer  by  stating  whether  or  not  the  facts  upon 
which  he  is  questioned  are  true,  provided  they  be  pertinent,  taking  into 
consideration  the  subject  of  the  controversy,  and  he  shall  not  be  per- 
mitted to  make  other  explanations  or  observations  than  those  which 
may  be  indispensable  to  elucidate  the  said  facts. 

237,  245. 

247).  ART.  448.  No  article  referring  to  impertinent  or  improper  acts 
shall  be  admissible,  nor  shall  the  person  interrogated  be  permitted  to 
make  any  improper  or  libellous  (injuriosa)  answer,  which,  taking  into 
consideration  the  nature  of  the  matter,  were  not  indispensable  for  his 
defense,  in  the  opinion  of  the  Judge. 

248).  ART.  449.  If  the  party  required  to  make  answer  should  in  an 
evident  manner  evade  a  categorical  answer,  the  Judge  shall  admonish 
him  once  only  to  make  such  answer,  under  the  penalty  of  his  being 
declared  to  have  confessed  should  he  not  give  it;  and  if  the  party 
should  continue  contumacious,  the  Judge  shall  eo  instanti  declare  the 
party  to  have  confessed  the  fact  which  he  did  not  wish  to  reply. 

245,  246. 

The  following  article  is  supplemental : 

249).  ART.  49  of  Law  105  of  1890.  The  fictitious  or  presumed  con 
fession  arising  from  the  person  interrogated  stating  that  he  ignores  or 
does  not  recollect  the  fact  upon  which  he  has  been  questioned,  is  not  full 
proof  but  a  more  or  less  strong  indication,  according  to  the  relation 
which  it  may  bear  to  the  evidence  which  the  party  favored  may  present; 
said  confession  may  likewise  be  invalidated  by  the  evidence  on  the  part 
of  the  party  prejudiced,  and  by  the  explanations  which  he  may  give  as 
to  the  manner  in  which  the  acts  took  place,  in  the  cvi-nl  that  such  ex- 
planation should  be  reasonable  and  based  upon  proved  facts 

244,  245. 
*  Ordinal  248. 


47 

250).  ART.  450.  No  appeal  lies  from  this  resolution;  but  its  effects 
are  limited  to  the  instance  in  which  it  may  have  been  rendered,  and  it  may 
be  modified  by  the  superior  in  the  appeal  or  in  any  other  remedy  against 
the  final  decision. 

251).  ART.  451.  In  replying  to  the  interrogatories,  the  person  inter- 
rogated shall  not  be  permitted  to  seek  the  counsel  of  any  one,  and  there 
shall  be  present  at  said  act  only  the  Judge,  the  Secretary  and  the  person 
interrogated,  who  shall  sign  the  proceeding. 

239,  second  paragraph. 

252).  ART.  452.  The  interrogatories  having  been  answered,  they 
shall  be  referred,  together  with  the  replies,  to  the  person  who  propounded 
them,  for  twenty-four  hours,  in  order  that  he  may  make  such  remarks 
as  he  may  deem  proper  in  support  of  his  rights. 

240,  second  part. 

253).  ART.  453.  The  evidence  admissible  against  confession  in  gen- 
eral, according  to  articles  -569  and  570*,  may  be  adduced  against  a  con- 
fession resulting  from  the  reply  to  the  interrogatories. 

248,  249,  250.     Law  169  of  1896,  art.  34. 

254).  ART.  454.  If  during  the  course  of  the  suit  it  should  be  proved 
in  an  evident  manner  that  one  of  the  parties,  in  replying  to  the  interrog- 
atories, knowingly  perjured  himself,  upon  a  substantial  matter  in  the 
suit,  in  addition  to  the  penalties  which  he  may  incur  owing  to  the 
perjury,  and  which  shall  be  imposed  upon  him  after  the  proper  criminal 
proceedings,  in  the  civil  suit  in  which  he  may  have  committed  the 
perjury,  he  shall  be  sentenced,  if  he  were  the  plaintiff,  to  the  loss  of  the 
suit,  and  if  the  defendant,  to  fulfill  the  obligation  the  subject  of  the  suit. 

255).  ART.  455.  Answer  to  the  interrogatories  may  be  made  through 
an  attorney  in  fact  sufficiently  instructed,  unless  a  request  be  made  that 
the  party  answer  thereto  personally.  What  the  attorney  may  do  in 
such  case,  shall  be  binding  upon  the  principal  in  every  respect,  without 
prejudice  to  the  personal  liability  of  the  former  if  he  shall  have  know- 
ingly committed  perjury,  or  should  not  have  observed  the  instructions 
given  him  by  his  principal. 

256).  ART.  456.  The  attorney  in  fact  is  not  obliged  to  answer  inter- 
rogatories, if  not  authorized  therefor,  and  if  the  party  whom  he  repre- 
sents is  in  the  place  of  the  suit ;  but  he  must  testify  as  a  witness  if  the 
opposite  party  should  so  request. 

*  Ordinals  400  and  401 


48 

257)-  ART.  457.*  The  representatives  of  the  Nation,  in  a  suit,  are 
always  considered  as  sufficiently  instructed  and  authorized  to  make 
answer  to  interrogatories. 

258).  ART.  458.  The  party  is  not  obliged  to  make  answer  to  inter- 
rogatories which  do  not  relate  to  personal  acts  of  the  party  interrogated. 

Knowledge  of  an  act,  even  though  performed  by  another,  is  considered 
as  a  personal  one  of  the  party  interrogated. 

259).  ART.  459.  The  party  who,  having  been  cited  to  reply  to  inter- 
rogatories, should  not  appear  at  the  time  and  place  designated,  if  not 
prevented  from  so  doing  by  some  just  and  legal  impediment,  duly 
proved ;  the  party  who,  entering  an  appearance,  should  refuse  to  make 
answer  to  some  of  the  questions  put,  if  pertinent,  and  the  party  who, 
before  being  cited  should  absent  or  conceal  himself,  or  should  perform 
any  other  act  of  this  character,  with  the  manifest  end  in  view  of  evading 
a  reply  to  the  interrogatories,  shall  be  declared  to  have  confessed. 

The  following  are  just  causes  for  non-appearance  at  the  hour  and 
place  designated:  i.  The  grave  illness  of  the  party  interrogated  or  of 
any  of  the  persons  of  the  family  with  whom  he  may  be  living;  2.  The 
death  of  any  of  the  said  persons,  having  taken  place  within  the  nine 
days  next  preceding  that  fixed  for  replying  to  the  interrogatories ;  and 
3.  Force  majeure. 

262,  327,  second  par. 

260).  ART.  460.  Two  witnesses,  or  a  trustworthy  document,  are 
sufficient  to  prove  an  excuse  based  upon  any  of  the  reasons  mentioned 
in  the  preceding  article ;  but  the  proof  must  be  submitted  together  with 
the  excuse,  not  later  than  the  hour  when  the  person  excusing  himself 
should  have  appeared.  It  is  necessary  to  prove  the  impossibility  to 
present  the  excuse  and  proof  within  the  time  fixed,  in  order  that  it  may 
be  admissible  later,  in  the  proceedings  which  may  be  instituted  in  order 
to  secure  a  declaration  of  confession. 

262. 

The  two  articles  which  follow  are  supplemental: 

261).  ART.  44  of  Law  105  of  1890.  Notwithstanding  the  provisions 
of  subdivision  2,  of  article  32  of  this  Law,  if  for  the  personal  notification 
referred  to,  the  person  of  whom  reply  to  interrogatories  is  sought, 
should  not  be  found,  the  following  proceedings  shall  be  had: 

1.  The  Secretary  shall  state  what  steps  he  may  have  taken  for  tin- 
purpose  of  serving  the  personal  notification  and  the  reason  for  the  failure 
to  make  such  service. 

2.  There  shall  be  posted  on  the  dwelling  house  of  said  person,  it  it  l>e 
known ;  upon  that  fixed  for  the  service  of  notifications,  if  any  shall  have 

*  Impliedly  repealed  by  article  9  of  Law  169  of  i 


49 

been  fixed,  and  upon  those  of  two  or  more  of  his  relatives,  friends  or 
connections,  notices  stating  that  he  has  been  ordered  summoned  for 
the  purpose  of  answering  interrogatories  in  a  certain  suit. 

3.  An  edict  shall  be  published  in  the  official  newspaper  of  the  Depart- 
ment summoning  said  person  to  appear  in  the  office  to  perform  said  act 
within  thirty  days,  counted  from  the  date  of  the  publication  of  the 
edict;  and 

4.  All  that  has  been  stated  having  been  done,  with  regard  to  which 
the  Secretary  shall  make  a  record  in  the  process,  and  the  thirty  days 
referred  to  in  the  preceding  paragraph  having  expired,  notice  of  the 
decree  shall  be  considered  as  served,  and  the  Judge  shall  so  declare  by 
means  of  a  resolution,  in  order  to  avoid  doubts  and  difficulties. 

203. 

262).  ART.  45  of  Law  105  of  1890.  In  the  cases  in  which  the  declara- 
tion of  confession  shall  be  based  upon  a  simple  presumption  of  citation 
and  notification,  established  by  the  law,  and  not  upon  a  personal  noti- 
fication or  citation,  the  respective  party  may  appear  for  the  purpose  of 
making  answer  to  the  interrogatory  within  twenty  days  following  the 
declaration  of  confession.  In  such  case,  the  proceeding  shall  be  had, 
and  the  declaration  of  confession  shall  not  produce  any  effect  whatsoever . 

The  envelope  containing  the  interrogatories  shall  be  kept  sealed,  and 
the  Judge  shall  abstain  from  rendering  judgment  until  the  twenty  days 
referred  to  in  the  preceding  paragraph  shall  have  elapsed. 

259,  260. 

CHAPTER  VIII. 
Exceptions. 

263).  ART.  461.  Every  person  who  shall  have  been  cited  to  appear  in 
court  by  virtue  of  a  complaint  filed  against  him,  may  use  in  his  defense 
the  legal  exceptions  which  he  may  believe  to  favor  him. 

279,  280,  265,  288,  289. 

264).  ART.  462.  Exceptions  are  divided  into  dilatory,  which  relate  to 
the  procedure  in  order  to  suspend  or  improve  it;  and  into  peremptory, 
which  are  opposed  to  the  substance  of  the  action. 

265,  284,  285,  288,  second  par. 

265).  ART.  463.  The  defendant,  within  the  term  allowed  him  to  make 
answer  to  the  complaint,  may  interpose  the  following  dilatory  ex- 
ceptions: i.  Declination  of  the  jurisdiction;  2.  The  illegality  of  the 
representation;  3.  That  of  improper  complaint  (inepta  demandd); 


50 

4.  That  of  Us  pendens;  5.  That  of  time  to  deliberate;  and  6.  That 
whose  purpose  is  to  establish  the  identity  of  the  person  of  the  plaintiff. 

847. 

266).  ART.  464.  The  exception  declining  the  jurisdiction  refers  to  a 
case  in  which  the  Judge  lacks  jurisdiction,  or  is  not  competent  to  take 
cognizance  of  the  suit,  according  to  the  provisions  of  Title  VI,  Book 
First.* 

267).  ART.  465.  The  exception  to  the  illegality  of  representation, 
may  be  pleaded  in  the  following  cases :  i .  When  the  plaintiff  should  not 
be  qualified  to  appear  in  court,  according  to  the  provisions  contained  in 
the  chapter  "Complainant  and  Defendant;"  2.  With  regard  to  the 
attorney  in  fact,  executor,  guardian,  receiver  or  syndic,  treasurer, 
fiscal,  and  other  persons  who  act  in  the  names  of  others,  to  prove  their 
representation;  3.  To  present  the  proof  of  the  acquisition  of  the  thing  or 
right  claimed,  when  the  reason  for  which  it  is  claimed  or  sued  for  is  that 
of  having  acquired  it  by  transfer  from  another  person;  and  4.  In  order 
that  the  identity  of  the  person  establishing  the  suit  be  proved. 

The  3d  case  in  this  article  was  expressly  repealed  by  art.  338  of  Law 
105  of  1890,  and  subrogated  by  the  following: 

268).  ART.  53  of  Law  105  of  1890.  An  exception  to  the  illegality  of 
representation  may  be  pleaded  when  the  plaintiff  shall  have  failed  to 
present  the  proof  of  the  acquisition  of  the  things  or  rights  which  he 
claims  in  the  event  that,  in  the  opinion  of  the  defendant,  such  things  or 
rights  belong  to  a  determinate  person,  not  the  plaintiff. 

Both  this  article  and  ordinal  article  267,  whose  third  subdivision  was 
subrogated  hereby,  were  repealed  by  article  87  of  Law  100  of  1892,  and 
subrogated  by  the  following: 

269).  ART.  25  of  Law  100  of  1892.  The  exception  to  the  illegality 
of  representation  may  be  pleaded  in  the  following  cases : 

1.  When  the  plaintiff  should  not  be  capable  of  appearing  in  court, 
according  to  the  provisions  contained  in  the  Chapter  entitled  "Com- 
plainant and  Defendant." 

2.  With  regard  to  the  attorney  in  fact,  executor,  guardian,  receiver 
and  other  persons  who  act  in  the  names  of  others,  in  order  that  they 
may  establish  their  representation. 

3.  For  the  purpose  of  establishing  the  identity  of  the  person  making 
the  complain  t.f 

*  The  Book  first  cited  in  this  article  was  repealed  by  article  230  of  the  Code  of 
Organization,  present  First  Book.  Title  VI  referred  to  in  this  article  corresponds 
to  Title  X  of  the  new  First  Book 

t  In  repealing  the  two  preceding  articles  and  subrogating  them  hereby,  it  was  not 
noticed  that  case  3  of  the  latter  constitutes  the  sixth  exception  of  ordinal  article  265, 
referred  to  in  ordinal  article  274. 


270).  ART.  466.  The  representation  need  not  be  established  when 
the  suit  is  brought  in  one's  own  cause:  thus,  for  example,  if  a  person 
claim  an  inheritance  in  the  character  of  a  child  of  the  deceased,  the 
defendant  cannot  excuse  himself  from  making  answer  to  the  complaint 
by  reason  of  the  plaintiff  not  establishing  his  quality  of  son,  as  this  and 
similar  exceptions  are  peremptory,  and  must  be  presented  and  estab- 
lished at  another  stage  of  the  suit. 

271).  ART.  467.  The  exception  of  an  improper  complaint  lies:  i. 
When  that  interposed  is  not  in  accordance  with  the  provisions  of 
Chapter  2  of  this  Title ;  2 .  When  the  complaint  is  made  against  a  person 
other  than  that  obliged  to  answer  for  the  thing  or  act  the  subject-matter 
of  the  suit ;  and  3.  When  the  complaint  is  given  a  course  other  than  that 
pertaining  thereto. 

272).  ART.  468.  The  exception  of  Us  pendens  is  pleaded  in  the  event 
that  a  suit  is  being  prosecuted  before  another  Judge  upon  the  same 
right  of  action,  in  order  that  the  Judge  who  first  took  cognizance  thereof 
may  continue  doing  so. 

273).  ART.  469.  The  exception  of  time  to  deliberate  lies  when  the  heir 
the  executor,  or  other  person  who  may  have  to  be  responsible  by  admin- 
istration, shall  not  as  yet  have  accepted  the  inheritance  or  administra- 
tion, by  reason  of  the  legal  period  for  deliberating  not  having  elapsed. 

274).  ART.  470.  The  sixth  exception  of  those  mentioned  in  article 
463,*  lies  when  the  complainant  is  objected  to  as  not  being  the  person 
he  supposes  himself  to  be. 

275).  ART.  471.  A  dilatory  exception  having  been  taken  in  due  time, 
the  Judge  shall  refer  it  to  the  plaintiff,  who  shall  make  answer  within 
forty-eight  hours.  The  reference  having  been  replied  to,  a  decision 
shall  be  rendered  on  the  exception  taken  within  forty-eight  hours,  if  the 
question  should  be  one  of  pure  law.  But  if  it  should  be  necessary  to 
prove  facts,  evidence  shall  be  taken  thereon  for  a  term  of  six  common 
days  which  cannot  be  extended,  upon  the  expiration  of  which  the  Judge 
shall  render  his  decision  within  three  days,  receiving,  if  produced  in 
time,  the  written  arguments  which  the  parties  may  wish  to  present. 

283. 

276).  ART.  472.  The  ruling  upon  the  exceptions  shall  include  the 
taxation  of  costs  against  the  party  defeated,  if  his  presumption  (temer- 
ity) were  manifest. 

731,743,736. 

277).  ART.  473.  In  the  ruling  declaring  the  exceptions  to  be  not 
proved,  the  defendant  shall  be  ordered  to  make  answer  within  twenty- 
four  hours. 

*  Ordinal  265. 


52 

278).  ART.  474.  If  there  be  two  or  more  defendants,  the  procedure 
for  deciding  with  regard  to  the  exceptions  pleaded  shall  not  begin  until 
the  term  of  the  last  reference  of  the  complaint  shall  have  expired. 

279).  ART.  475.  The  defendant  must  plead  all  the  exceptions  to 
which  he  may  believe  himself  entitled  at  one  time,  as  they  are  not  ad- 
missible one  after  the  other. 

The  following  article  is  supplemental : 

280).  ART.  50  of  Law  105  of  1890.  The  right  to  propose  dilatory 
exceptions  can  be  used  once  only  in  the  suit. 

281).  ART.  476.  When  the  dilatory  exception  proposed  shall  be  de- 
clared proved,  the  defendant  is  not  obliged  to  make  answer  to  the  com- 
plaint as  long  as  the  cause  for  the  exception  shall  exist. 

282).  ART.  477.  The  rulings  by  Judges  of  First  Instance  upon  dila- 
tory exceptions  may  be  appealed  from  to  the  Federal  Supreme  Court. 

783  to  787. 

283).  ART.  478.  Every  dilatory  exception  shall  be  heard  and  decided 
in  a  separate  record. 

275- 

284).  ART.  479.  The  most  ordinary  peremptory  exceptions  are  the 
following:  i.  Payment  already  made  of  the  debt  claimed;  2.  Remis- 
sion or  condonation  of  the  debt;  3.  Set  off  of  the  debt  claimed,  by 
another  equal,  greater  or  less  owed  by  the  plaintiff  to  the  defendant ; 
4.  The  novation  of  the  obligation  claimed;  5.  Fraud  or  fear  exercised 
in  the  contract;  6.  Falsity  of  the  obligation  claimed;  7.  Nullity  of  the 
said  obligation:  8.  Transaction  or  private  arrangement  between  the 
creditor  and  the  debtor;  9.  Res  judicata;  10.  An  agreement  not  to 
demand ;  1 1 .  Order  or  discussion  (excusiori) ,  that  is  the  right  to  oblige 
the  plaintiff  to  collect  the  debt,  before  doing  so  of  the  defendant,  of 
another  person  first  or  principally  obligated,  as  in  the  case  of  the  surety 
being  sued  before  the  principal  debtor,  when  the  security  is  not  solidary ; 

12.  That  of  petition  before  the  time  due  or  in  an  improper  manner; 

13.  That  the  obligation  sued  for  is  a  conditional  one,  and  that  the  con- 
dition has  not  been  performed;  14.   Prescription  or  loss  of  the  right 
sought  to  be  enforced,  by  the  lapse  of  time;  and  15.  A  fortuitous  event 
or  unexpected  and  invincible  accident  which  has  prevented  the  fulfill- 
ment of  the  obligation.* 

264,  285. 

The  following  article  is  supplemental : 

285).  ART.  52  of  Law  105  of  1890.     Any  act  by  virtue  of  which  the 

*  Sec  the  titles  relating  to  these  exceptions  in  Book  Fourth  of  the  Civil  Code. 


53 

laws  ignore  the  existence  of  the  obligation  or  declare  it  extinguished,  if 
it  ever  existed,  constitutes  a  peremptory  exception. 

264. 

286).  ART.  480.  The  exception  of  set  off,  shall  be  admissible  only  in 
the  event  that  the  judicial  proceedings  relating  to  each  right  of  action 
should  be  of  a  similar  character,  that  is,  both  ordinary,  or  both  special. 

287).  ART.  481.  An  exception  pleading  a  fortuitous  event  shall  lie 
only  in  case  the  obligation  consist  of  the  delivery  of  a  certain  and  de- 
terminate thing,  under  a  contract  or  quasi-contract,  for  the  reason  that  a 
generic  obligation,  or  that  of  delivering  a  generic  thing  or  amount,  is  not 
extinguished  by  fortuitous  events.  When  said  exception  is  admissible, 
in  accordance  with  this  article,  he  who  pleads  it  must  prove  it  by  estab- 
lishing that  the  loss  or  destruction  of  the  thing  is  due  to  an  unknown 
or  unforeseen  cause,  which  it  was  impossible  to  avoid. 

J565,  1566,  1567  of  the  Civil  Code. 

288).  ART.  482.  The  peremptory  exceptions  must  be  proposed  in  the 
answer  to  the  complaint,  or  during  the  first  half  of  the  ordinary  pro- 
batory  term ;  they  are  inadmissible  outside  of  this  time. 

Nevertheless,  an  exception  of  res  judicata  may  be  proposed  also  as  a 
dilatory  exception,  before  answer  to  the  complaint. 

284,  285,  289,  265,  291,  864,  1596  subdivision  3. 

The  following  article  is  amendatory: 

289) .  ART.  5 1  of  Law  105  of  1 890.  When  the  Judge  shall  find  that  the 
facts  constituting  a  peremptory  exception  are  established,  even  though 
such  exception  should  not  have  been  proposed  nor  pleaded,  he  must 
admit  it  in  the  judgment  and  decide  the  suit  in  accordance  with  the  ex- 
ception admitted;  nevertheless,  with  regard  to  an  exception  pleading 
prescription,  it  is  necessary  that  it  be  pleaded,  which  may  be  done  at 
any  stage  of  the  cause. 

285,  288.     2513  of  the  Civil  Code. 

290).  ART.  483.  Peremptory  exceptions  are  not  the  subject  matter  of 
articles  requiring  decision  before  the  proceedings  are  continued;  they 
are  decided  in  the  final  judgment. 

288,  289. 

291).  ART.  484.  The  Attorney-General  of  the  Nation  may  propose 
peremptory  exceptions  at  second  instance  in  civil  matters,  when  they 
should  not  have  been  proposed  at  first  instance  by  the  official  repre- 
senting the  Nation  in  said  matter.  He  may  do  this  until  the  time  of 


54 

citation  for  judgment,  and  if  the  opposition  of  peremptory  exceptions 
should  lie  from  the  time  of  the  termination  of  the  probatory  term,  until 
citation  for  judgment,  the  Federal  Supreme  Court  shall  ex  proprio  motu 
return  the  matter  to  its  state  at  the  time  evidence  thereon  was  first 
taken,  without  such  action  invalidating  what  may  have  taken  place  up 
to  that  time. 

If  no  evidence  shall  have  been  taken  in  the  second  instance,  the  Court 
shall  allow  the  common  term  of  ten  days  for  the  presentation  of  evidence 
in  the  event  that  the  Attorney-General  should  propose  peremptory 
exceptions. 

The  right  to  plead  exceptions,  granted  by  this  article,  may  be  made 
use  of  once  only  in  each  suit,  both  by  the  Attorney-General  of  the  Nation, 
as  by  the  parties  opposing  the  Fisc ;  but  this  right  shall  not  be  granted  the 
latter  at  second  instance,  unless  the  Attorney-General  shall  have  made 
use  thereof. 

1596,  3d  subdivision. 

CHAPTER  IX. 
Judicial  Proceedings  (Actuation). 

292).  ART.  485.  The  proceedings  in  every  national  suit  shall  always 
be  kept  in  writing,  on  ordinary  paper. 

293).  ART.  486.  The  paper  for  the  proceeding  shall  be  advanced  by 
the  plaintiff  in  each  instance.  If  he  should  fail  to  furnish  it  not  later 
than  the  day  following  that  on  which  he  may  be  asked  therefor,  the  re- 
spective Secretary  shall  furnish  it,  if  the  defendant  should  so  request. 

294).  ART.  487.  If  for  the  second  time,  in  the  instance,  the  plaintiff 
should  fail  to  furnish  the  necessary  paper  in  due  time,  and  the  de- 
fendant should  not  take  any  action,  the  course  of  the  proceedings  shall 
be  stayed,  the  Secretary  making  a  memorandum  stating  what  has  taken 
place. 

295).  ART.  488.  If  in  the  case  of  the  preceding  article  the  defendant 
should  furnish  the  necessary  paper  for  the  plaintiff  the  matter  shall  con- 
tinue its  legal  course. 

296).  ART.  489.  If  the  defendant  should  complain  of  the  omission 
on  the  part  of  the  plaintiff,  without  offering  the  paper  necessary,  the 
Judge  or  Tribunal  of  the  cause  shall  allow  the  plaintiff  a  term  of  twenty- 
four  hours  to  appear  with  the  paper  necessary,  warning  him  that  if  he 
fails  to  do  so,  a  declaration  will  be  made  that  the  plaintiff  has  abandoned 
the  instance,  which  shall  be  made  in  such  case,  on  the  motion  of  the 
defendant  and  after  a  report  of  the  respective  Secretary. 

297).  ART.  490.  If  the  declaration  referred  to  in  the  preceding  article 
should  issue  against  the  complainant,  he  cannot  institute  the  same  suit 
if  the  declaration  should  be  made  in  the  first  instance.  If  made  in  the 
second,  whoever  be  the  appellant  therein,  the  effect  of  a  declaration  of 


55 

abandonment  shall  be  to  make  the  decision  appealed  from  final,  to  the 
prejudice  of  the  appellant,  who  shall,  furthermore,  be  adjudged  to  pay 
the  costs  of  the  instance. 

298).  ART.  491.  When  the  Secretary  or  the  opponent  should  furnish 
the  paper  necessary  for  the  plaintiff,  the  latter  shall  reimburse  the  value 
thereof,  for  which  purpose  a  memorandum  shall  be  made  on  each  sheet 
of  the  party  furnishing  it. 

The  seven  preceding  articles  have  been  expressly  repealed  by  article 
338  of  Law  105  of  1890,  and  subrogated  by  ordinal  articles  299  to  304 : 

299).  ART.  56  of  Law  105  of  1890.  In  suits,  the  paper  prescribed  by 
the  organic  law  on  stamped  paper  shall  be  used,  reserying  the  provisions 
for  special  cases. 

300).  ART.  57  of  Law  105  of  1890.  The  paper  necessary  to  resolve 
the  petitions  of  the  parties  and  for  the  consequent  edicts,  communica- 
tions, acts,  etc.,  shall  be  furnished  by  the  party  making  the  petitions; 
but  the  paper  for  the  continuation  of  the  suit  proper  and  the  decision, 
shall  be  furnished  by  the  plaintiff  in  the  proceedings. 

303,  304,  306. 

301).  ART.  58  of  Law  105  of  1890.  Each  paity  shall  always  keep  in 
the  possession  of  the  respective  Secretary,  at  least  one  sheet  of  stamped 
paper  for  the  proceedings  in  each  suit.  The  party  failing  to  comply 
with  this  duty,  shall  be  called  upon  by  the  Secretary  to  furnish  it,  by 
virtue  of  a  previous  verbal  request  made  by  the  opposing  party. 

The  Secretary  shall  make  a  record,  upon  ordinary  paper  in  the  absence 
of  stamped  paper,  of  his  request,  stating  the  date. 

302).  ART.  59  of  Law  105  of  1890.  If  the  party  called  upon  should 
not  furnish,  within  three  days  after  the  request  to  do  so,  the  paper  re- 
ferred to  in  the  preceding  article,  or  the  paper  requested  for  the  pro- 
ceeding or  the  final  judgment,  he  shall  incur  a  fine  of  five  pesos  In  the 
event  of  a  second  failure  to  do  so,  the  fine  shall  be  equal  to  the  last  one 
imposed,  with  a  surcharge,  each  time,  of  five  pesos. 

It  is  the  obligation  of  the  Judge  or  Magistrate  to  make  ex  proprio 
motu  all  the  orders  necessary  for  the  fulfillment  of  the  provisions  of 
article  2 1 8  of  the  Code  of  Judicial  Organization ;  but  the  arrest  referred 
to  in  said  article  shall  not  take  place  if  at  the  time  of  making  it  the  fine 
is  paid. 

Expressly  repealed  by  article  87  of  Law  100  of  1890,  and  subrogated 
by  the  following : 

303).  ART.  30  of  Law  100  of  1892.  If  the  party  called  upon  should 
not  furnish,  within  three  days  after  the  request  shall  have  been  made, 
the  paper  necessary  for  the  proceeding  or  for  the  judgment,  he  shall 
incur  a  fine  of  five  pesos;  if  notwithstanding  the  imposition  of  the  fine 


56 

he  should  fail  to  furnish  the  paper,  he  shall  again  be  requisitioned  to  do 
so  by  means  of  an  order,  made  at  the  request  of  the  opposite  party ;  and 
if  thirty  days  should  elapse  without  his  doing  so,  it  shall  be  presumed 
that  he  abandons  the  instance  or  the  appeal,  and  a  declaration  to  that 
effect  shall  issue. 

This  provision  does  not  comprise  the  suits  referred  to  in  article  815* 
of  the  Judicial  Code. 

683. 

304).  ART.  60  of  Law  105  of  1890.  The  party  opposing  the  party 
who  fails  to  furnish  the  paper  in  due  time,  may  furnish  it,  having  the 
right  in  the  taxation  of  costs,  to  a  credit  or  deduction — according  as  to 
whether  he  may  be  entitled  thereto  or  he  should  be  adjudged  to  pay 
them — in  addition  to  the  value  of  the  paper  furnished,  of  a  surcharge 
of  fifty  per  cent. 

305).  ART.  492.  If  the  plaintiff  or  complainant  should  be  the  Fisc,  or 
the  Nation,  the  paper  to  be  furnished  by  such  party  for  the  proceeding 
shall  be  taken  by  the  Secretary  from  that  provided  for  the  use  of  the 
respective  Superior  or  Inferior  Court. 

306).  ART.  493.  At  least  two  sheets  of  paper,  furnished  in  advance 
by  the  party  who  interposed  the  appeal  of  which  a  tribunal  or  court  is 
to  take  cognizance,  shall  be  attached  to  every  record  transmitted  to  the 
same.  This  shall  not  be  necessary  if  the  appellant  should  be  the  Fisc. 

307).  ART.  '494.  The  Judges  and  Justices  shall,  in  the  dispatch  of 
civil  affairs,  give  preference  to  the  most  important  and  urgent  ones, 
without  this  authorizing  them  to  delay  the  dispatch  of  any  other  matter 
for  a  term  greater  than  that  permitted  by  the  laws. 

308).  ART.  495.  With  the  exception  of  the  cases  expressly  excepted 
in  this  Code,  the  Judges  and  Justices  shall  advance  the  suits  them- 
selves and  are.  liable  for  any  delay  or  stay. 

309).  ART.  496.  The  Secretaries  shall  make  a  note  upon  the  records, 
of  the  cause  of  any  delay,  and  should  they  fail  to  do  so,  they  shall  incur 
a  fine  of  ten  to  fifty  pesos,  which  shall  be  imposed  upon  them  by  the 
same  Judge  of  the  instance  or  by  the  Superior. 

310).  ART.  497.  The  Secretaries  shall  authorize  with  their  signatures 
all  judicial  resolutions,  placing  under  the  signature  the  name  of  the 
office,  and  stating  whether  they  are  the  regular  incumbents,  or  are 
acting  temporarily  or  accidentally. 

197. 

311).  ART.  498.  The  Secretaries  are  under  the  special  obligation  of 
showing  the  parties  or  any  other  person  the  papers  in  a  pending  case 

*  Ordinal  No.  6 


57 

and  those  filed,  excepting  only  such  proceedings  which,  for  the  honor  of 
some  family,  are  being  conducted  secretly;  as  such  proceedings  are 
private  in  so  far  as  persons  not  parties  to  the  suit  are  concerned. 

312).  ART.  499.*  The  vSecretary  must  always  certify,  on  the  verbal 
petition  of  the  persons  interested,  and  by  order  of  the  respective  Judge 
or  Justice,  to  any  acts  connected  with  the  matters  in  which  he  takes 
part,  and  furnish  an  authorized  copy,  at  the  cost  of  the  person  interested, 
of  any  document  in  his  office,  when  a  request  shall  be  made  and  an  order 
issued  by  the  Judge  or  Tribunal.  Such  matters  in  which  publicity  is 
inadmissible  are  excepted. 

313).  ART.  500.  The  Secretaries  receive  for  these  certificates  and 
copies  the  fees  mentioned  in  Title  VIII,  Book  I.f 

314.)  ART.  501.  Outside  of  the  cases  expressly  determined  bylaw, 
no  record  or  original  document  shall  go  out  of  the  Office  of  the  Secretary, 
and  the  Secretary  is  responsible  for  any  loss  which  may  occur. 

8,  340,  564,  567.  — 

NINTH  AMENDMENT. 
(Of  Law  53  of   1882.) 

315).  ART.  502.  The  Judges  of  first  instance  and  the  Federal  Supreme 
Court  shall  return  to  the  persons  interested,  without  the  necessity  of 
retaining  a  copy,  the  documents  and  evidence  comprised  in  the  records  of 
suits  for  the  recovery  of  pensions,  instituted  under  Law  50  of  1879,  and 
which  remained  pending  as  a  consequence  of  the  repeal  of  said  Law. 
The  persons  interested  may  proceed  to  the  proper  place  for  the  purpose 
of  enforcing  their  rights,  and  their  evidence  shall  be  weighed  in  accord- 
ance with  the  general  rules  and  the  special  ones  contained  in  Law  14  of 
the  present  year  in  its  9th  and  following  articles.! 

316).  ART.  503.  Each  matter  shall  be  conducted  in  a  separate  record, 
that  is  to  say,  different  matters  shall  not  be  consolidated,  but  neither 
shall  the  continency  of  each  cause  be  divided. 

317).  ART.  504.  Whenever  a  term  of  hours  shall  be  set  by  the  law  or 
the  Judge  for  the  execution  of  a  proceeding,  the  hour  of  its  execution 
shall  be  expressed. 

318).  ART.  505.  A  separate  record  shall  be  made  of  each  incidental 
issue  arising  during  the  course  of  the  action,  which,  after  a  decision  on 
the  issue,  shall  be  added  to  the  principal  record  of  the  case. 


*  Amended  by  article  28  of  Law  100  of  1 892.  This  article  is  in  contradiction  to  the 
present  one  in  so  far  as  the  certifications  of  Secretaries  are  concerned. 

t  Article  230  of  the  Code  of  Organization  expressly  repealed  said  Book  I;  but 
article  18  of  Law  72  of  1890,  re-established  in  an  express  manner  the  said  Title  VIII. 

t  The  year  referred  to  in  this  article  is  1882. 


58 

At  the  beginning  of  the  hearing  on  any  incidental  issue,  the  Judge  or 
Justice  shall  direct  the  formation  of  a  separate  record. 

583  et  seq. 

The  five  articles  that  follow  are  supplemental : 

319).  ART.  54  of  Law  105  of  1890.  When  the  plain  tiff  shall  abandon 
for  one  year  during  the  first  instance  the  suit  which  he  may  have  insti- 
tuted, the  instance  shall  be  considered  as  lapsed  and  the  record  of  the  case 
shall  be  filed  by  order  of  the  Judge  or  Tribunal  taking  cognizance  of  the 
matter;  an  order  which  shall  be  made  ex  proprio  motu  upon  a  report 
from  the  Secretary,  and  which  shall  be  drafted  on  ordinary  paper,  in  the 
absence  of  stamped  paper.  It  shall  be  understood  that  there  has  been 
abandonment  when  the  plaintiff  shall  not  have  taken  any  action  in 
writing  necessary  for  the  continuation  of  the  suit,  for  one  year. 

The  ruling  containing  the  order  referred  to  which  shall  be  made  known 
by  edict,  having  become  final,  any  attachment  which  may  have  been 
levied  shall  be  raised  and  the  records  which  may  have  been  made  by 
reason  of  the  suit  or  the  attachment  in  the  registration  offices  shall  be 
cancelled  by  mandate  of  the  Judge. 

The  lapse  of  the  instance  does  not  entail  that  of  the  action  which 
may  still  exist ;  but  the  same  action  cannot  again  be  instituted  for  two 
years  from  the  date  of  the  decree  by  which  the  lapse  was  declared. 
The  term  of  the  prescription  of  the  action  shall  not  be  considered  as 
interrupted  by  the  complaint  which  was  the  cause  of  the  instance  which 
has  lapsed. 

If  the  circumstances  mentioned  in  the  first  paragraph  of  this  article 
should  occur  a  second  time,  between  the  same  parties  and  for  the  same 
action,  the  action  shall  be  declared  to  be  extinguished,  which  declara- 
tion shall  be  made  in  accordance  with  the  provisions  contained  in  the 
preceding  paragraphs. 

The  provisions  of  this  article  shall  not  apply  in  suits  in  which  the 
complainant  is  the  Nation,  a  Department,  a  Municipality  or  a  public 
establishment  of  education  or  beneficence. 

308,  320,  683,  740. 

Amended  by  the  following  article : 

320).  ART.  29  of  Law  100  of  1892.  The  lapse  of  the  instance,  im- 
posed as  a  penalty  upon  the  plaintiff  abandoning  the  suit,  in  the  terms 
of  article  54*  of  Law  105  of  1890,  shall  not  apply  to  proceedings  on  suc- 
cessions and  the  partition  of  common  property,  and  in  general,  to  pro- 
ceedings involving  mere  voluntary  jurisdiction,  nor  to  executory 
actions.  With  regard  to  the  later,  the  provision  is  applicable  after 
property  shall  have  been  attached. 

*  Ordinal  319. 


59 

32 1).  ART.  55  of  Law  105  of  1890.  When  the  consent  of  any  person 
shall  be  required  for  any  judicial  effect,  it  must  be  expressed  in  writing, 
and  such  document  must  be  presented  in  person  to  the  Secretary  of  the 
Judge  taking  cognizance  of  the  affair,  of  which  a  record  shall  be  made. 

In  such  case,  and  in  all  those  in  which  by  a  provision  of  the  law  a  docu- 
ment must  be  presented  personally,  if  the  person  required  to  make  such 
presentation  should  be  absent  from  the  place  where  it  is  to  be  made,  he 
shall  address  the  document  to  the  Judge  taking  cognizance  of  the  action, 
causing  it  to  be  authenticated  by  the  Judge  of  his  residence,  as  provided 
for  powers  of  attorney  by  memorial  in  article  329,*  3d  case,  of  the 
Judicial  Code.  The  same  method  shall  be  observed  for  the  presentation 
of  any  document  or  memorial  when  the  party  interested  should  be 
absent  from  the  place  where  the  proceedings  are  being  held. 

322,  335. 

322.)  ART.  6 1  of  Law  105  of  1890.  The  parties  may  request,  by 
common  consent  and  as  often  as  they  may  choose,  the  suspension  of  the 
proceedings  for  a  certain  number  of  days.  Such  written  petition  must 
be  presented  personally  to  the  Judge  or  Justice  before  the  Secretary, 
of  which  act  a  record  shall  be  made  which  shall  be  signed  by  the  Judge 
or  Justice  before  the  Secretary  and  the  parties. 

323,  336,  321,335- 

323).  ART.  62  of  Law  105  of  1890.  What  is  provided  in  this  article 
is  without  prejudice  to  the  rights  of  those  persons  who  in  accordance 
with  the  laws  have  or  may  have  an  interest  in  the  suit,  or  who  may  be 
prejudiced  by  the  suspension  thereof,  which  suspension  cannot  take  place 
without  the  consent  of  said  persons. 


CHAPTER  X. 
Periods    of    time. 

324).  ART.  506.  Legal  periods  of  time  or  terms  are  those  designated 
in  this  Code  for  judicial  affairs.  The  Judge  shall  fix  the  term  in  the 
cases  in  which  the  law  shall  not  have  done  so,  making  an  endeavor 
always  to  have  it  as  short  as  possible,  but  without  prejudice  to  the  de- 
fense of  the  parties.  ^ 

325) .  ART.  507.  Every  judicial  order  or  proceeding  must  be  performed 
within  the  term  designated.  The  terms  begin  to  run  from  the  date  of  the 
notification  to  the  parties,  if  both  are  interested  in  the  provision  of  the 

*  Ordinal  95. 


6o 

Judge,  without  prejudice  to  each  party  availing  himself  of  the  rights 
corresponding  to  him,  upon  being  notified,  provided  that  the  opposing 
party  should  not  be  prejudiced  by  reason  of  ignorance  of  the  order,  and 
reserving  special  provisions. 

339,  328,  375- 

326).  ART.  508.  Legal  terms  run  by  operation  of  law,  without  any 
necessity  of  the  order  stating  their  duration,  and  they  are  suspended  or 
do  not  run:  i.  On  holidays  or  days  of  vacation ;  2.  During  a  legal  inci- 
dental issue,  when  the  law  shall  have  so  prescribed;  3.  By  reason  of  a 
legitimate  impediment  on  the  part  of  the  Judge;  and  4.  By  reason  of  a 
legitimate  impediment  which  may  have  occurred  to  one  of  the  parties 
to  the  action.. 

Such  impediments  are:  i.  An  illness  classified  as  grave;  2.  The 
death  of  any  of  the  persons  of  the  family  of  which  the  party  or  the  Judge 
may  be  a  member,  and  with  which  he  may  be  living;  and  3.  Force  or 
violence. 

The  Judge  shall  raise  the  suspension  due  to  an  impediment  of  one  of 
the  parties,  combining  prudence  with  the  interests  of  the  other  party. 

In  the  event  of  suspension  by  reason  of  an  impediment  on  the  part 
of  the  Judge,  it  cannot  be  extended  beyond  the  time  necessary  for  the 
respective  substitute  to  take  charge. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  following : 

327).  ART.  64  of  Law  105  of  1890.  Legal  terms  run  by  operation  of 
law,  without  any  necessity  of  the  order  stating  the  duration  thereof, 
and  they  are  suspended  or  do  not  run :  i .  On  holidays  or  days  of  vaca- 
tion; 2.  During  some  legal  incidental  issue,  when  the  law  shall  have  so 
prescribed;  3.  By  reason  of  any  accident  which  may  cause  the  suspen- 
sion of  public  business;  4.  By  reason  of  a  legitimate  impediment  on  the 
part  of  the  Judge;  and  5.  By  reason  of  a  legitimate  impediment  which 
may  have  occurred  to  one  of  the  parties  to  the  action. 

Such  impediments  are:  i.  An  illness  classified  as  grave;  2.  The  death 
of  any  of  the  persons  of  the  family  of  which  the  party  or  the  Judge  may 
be  a  member,  and  with  which  he  may  be  living ;  and  3.  Force  or  violence. 

The  Judge  shall  raise  the  suspension  due  to  an  impediment  in  one  of 
the  parties,  combining  prudence  with  the  interests  of  the  other  party. 

In  the  event  of  suspension  by  reason  of  an  impediment  on  the  part  of 
the  Judge,  it  must  not  extend  beyond  the  time  necessary  for  the  respec- 
tive substitute  to  take  charge. 

648,  652. 


6i 

328).  ART.  509.  Terms  for  the  presentation  of  evidence  are  common, 
and  run  from  the  time  all  the.  parties  are  notified  of  the  order  granting 
one  of  said  terms. 

337,  375- 

329).  ART.  510.  In  the  event  of  the  suspension  of  any  term,  in  accord- 
ance with  article  508,*  the  Secretary  shall  embody  in  the  record  a  state- 
ment of  the  date  upon  which  the  suspension  may  have  begun,  and  the 
day  upon  which  it  may  cease.  t 

The  following  article  is  supplemental : 

330).  ART.  65  of  Law  105  of  1890.  Whenever  any  term  whatsoever 
must  be  suspended  by  a  judicial  resolution,  the  suspension  shall  begin 
from  the  hour  when  said  resolution  is  rendered. 

337- 

331).  ART.  511.  When,  a  term  having  expired,  the  parties  should  not 
have  made  use  of  their  rights,  the  course  of  the  action  continues.  Any 
damage  for  an  omission  is  chargeable  to  the  person  who  incurred  it, 
reserving  the  right  to  recover  damages  which  the  law  grants  to  the  party 
injured,  against  his  attorney  in  fact  or  representative  who  is  negligent  or 
guilty  of  the  omission. 

332).  ART.  512.  As  a  general  rule,  and  reserving  the  special  and  ex- 
press provisions  of  this  Code,  the  Judges  shall  render  their  judgments 
and  decisions  within  the  following  terms  and  not  later:  Within  ten 
days,  if  the  decision  were  a  definitive  one ;  within  five,  if  it  were  an  in- 
terlocutory one,  with  the  force  of  a  definitive  decision ;  within  three,  if 
it  were  any  other  interlocutory  decision ;  and  within  twenty-four  hours 
if  the  order  be  one  of  mere  practice. 

333,  334- 

The  two  articles  which  follow  are  additional  and  amendatory: 

333).  ART.  63  of  Law  105  of  1890.     All  the  Judges  and  Justices  of  the 

District  courts  and  of  the  Supreme  Court,  are  granted  for  the  rendition 

of  judgments  and  decisions,  a  term  double  that  fixed  for  each  case  in  the 

Judicial  Code. 

A  decision  of  classification  (graduation)  in  insolvency  proceedings  is 

excepted,  which  shall  be  rendered  within  thirty  days. 

332,  334- 

334.)  ART.  22  of  Law  100  of  1892.  The  Justices  and, Judges  shall 
have  for  the  purpose  of  rendering  judgment,  in  addition  to  the  term  fixed, 

*  Ordinal  326. 


62 

one  day  for  every  fifty  sheets,  when  the  record  shall  consist  of  more  than 
one  hundred. 

This  provision  is  extended  to  fiscales. 

343,  352,  1596  subdivision  6. 

335).  ART.  513.  Any  term,  formality  or  guarantee  which  the  law 
grants  in  the  sequence  of  the  action,  may  be  waived  by  the  party  who 
may  be  favored  by  the  concession,  provided  that  he  do  so  in  writing  or 
clearly  stating  the  term,  the  formality  or  the  guarantee  waived.  Said 
instrument  shall  be  presented  in  person  by  the  party  or  parties  making 
the  waiver,  to  the  respective  Secretary,  who  shall  affix  a  note  at  the  foot 
stating  that  it  was  presented  personally  by  the  parties  making  the 
waiver;  said  note  shall  be  subscribed  by  the  latter  and  by  the  Secretary. 
The  omission  of  the  formalities  thus  waived  does  not  invalidate  the 
action. 

336,  321,  322,  323. 

336).  ART.  514.  The  terms  which  the  parties  may  by  mutual  con- 
sent have  agreed  to,  shall  be  judicially  observed. 

335- 

337).  ART.  515.  Terms  of  hours  shall  begin  to  run  from  that  following 
the  hour  when  the  respective  notification  may  be  made,  and  terms  of 
days,  from  the  day  following  that  upon  which  the  notification  may  have 
been  made. 

328,  330. 

338).  ART.  66  of  Law  105  of  1890.  By  an  hour  is  understood  the 
lapse  of  sixty  minutes.  Whenever  an  hour  shall  be  fixed  for  the  per- 
formance of  any  act  or  proceeding,  the  precise  moment  of  the  beginning 
of  the  hour  shall  be  stated  in  the  respective  record. 

1600.     67,  68  and  70  of  the  Civil  Code. 

339).  ART.  15  of  Law  100  of  1892.  Whenever  an  hour  shall  be  fixed 
for  the  holding  of  some  proceeding,  the  actual  time  for  tin-  performance 
thereof  shall  not  be  considered  as  having  expired  until  the  moment  that 
the  following  hour  begins;  and  it  shall  be  understood  that  said  hour 
begins  in  accordance  with  custom,  from  the  time  that  the  clock,  set  at 
the  meridian  shall  announce  it. 


CHAPTER  XI. 

Delivery  of  the  records  and  remedies  against  those  who  do  not  return  them, 

340).  ART.  516.  In  order  to  plead  and  make  answer  to  the  references 
made  to  them,  the  parties  may  remove  the  records  from  the  office  of  the 
Secretary,  upon  giving  the  proper  receipt,  which  they  shall  sign  together 
with  a  surety  of  responsibility,  in  the  judgment  of  the  Secretary. 


341).  ART.  517.  The  records  shall  be  delivered  and  returned  with  a 
detailed  statement  of  the  number  of  pamphlets  and  sheets  which  they 
may  contain,  and  of  the  condition  of  both. 

342)  .  ART.  518.  The  party  delaying  the  return  of  a  record  (expediente)  , 
even  though  it  be  only  one  day  beyond  the  term  granted,  loses  the 
right  to  the  removal  thereof  again,  and  he  can  be  permitted  to  examine 
it  in  the  office  of  the  Secretary  only. 

The  Secretaries  do  not  require  a  judicial  mandate  for  the  purpose  of 
executing  this  provision;  and  each  time  they  should  fail  to  do  so  they 
shall  incur  a  fine  of  four  pesos,  which  shall  be  imposed  upon  them  by  the 
Judge  or  Tribunal  taking  cognizance  of  the  cause  simply  with  the  record 
before  him. 

348,  353- 

343).  ART.  519.  When  records  consisting  of  more  than  two  hundred 
sheets  should  be  delivered  to  the  parties,  they  shall  be  allowed  for  the 
return  thereof,  in  addition  to  the  term  fixed,  one  day  for  each  fifty  sheets 
above  the  two  hundred,  provided  that  the  total  term  shall  not  exceed 
twelve  days. 

334- 

344).  ART.  520.  Upon  the  presentation  of  a  complaint,  a  true  copy 
thereof  shall  be  made  at  the  cost  of  the  complainant,  which  copy  shall 
be  kept  in  the  archives,  under  the  liability  of  the  Secretary,  for  the  pur- 
poses mentioned  in  the  following  articles. 

846,  345,  346,  353,  103. 

345).  ART.  521.  The  party  who  for  any  reason  whatsoever  shall  take 
the  record,  and  upon  the  expiration  of  the  term  for  which  he  could  retain 
the  same  should  have  failed  to  return  it  on  the  request  of  the  opposite 
party,  shall  be  called  upon  to  do  so  before  the  expiration  of  the  second 
day,  under  the  admonition,  if  he  were  the  complainant,  that  he  will  lose 
the  rights  or  the  things  claimed;  and  if  he  were  the  defendant,  that  judg- 


64 

ment  will  be  rendered  against  him  in  accordance  with  the  complaint; 
and  if  upon  the  expiration  of  this  period  the  record  should  not  have  been 
returned,  the  Judge  or  Tribunal  in  view  of  the  true  copy  of  the  com- 
plaint, shall,  after  citation  of  the  parties  and  without  further  proceedings 
render  judgment  in  accordance  with  the  terms  of  the  admonition. 

347,  348,  349,  35i. 

346).  ART.  522.  In  order  that  the  Federal  Supreme  Court,  in  the 
matters  of  which  it  takes  cognizance  at  second  instance,  may  render 
judgment  in  the  case  of  the  preceding  article,  it  shall  request  the  copy 
of  the  complaint  of  the  Judge  of  first  instance,  and  the  latter  shall  imme- 
diately transmit  it,  with  the  necessary  safeguards. 

347).  ART.  523.  An  appeal  lies  to  the  Federal  Supreme  Court  from  the 
decision  rendered  by  a  national  Judge  of  first  instance  in  the  said  case. 

This  appeal  shall  be  decided  in  view  of  the  proceedings  had  in  accord- 
dance  with  the  procedure  prescribed  for  appeals  from  interlocutory 
judgments,  and  its  purpose  shall  be  to  examine  whether  the  Judge  who 
rendered  judgment  acted  as  prescribed  in  article  521,  or  whether  there 
has  been  any  circumstance  suspending  the  terms,  or  another  cause  mak- 
ing the  judgment  unjust  in  whole  or  in  part,  by  reason  of  which  it  may 
be  amended  or  revoked,  but  always  in  the  meaning  of  the  following 
article  and  of  the  articles  to  which  the  latter  refers.* 

348).  ART.  524.  If  by  virtue  of  the  admonition  referred  to  in  article 
52 if  the  record  should  be  returned  before  the  expiration  of  the  second 
day,  the  provisions  of  article  518$  shall  thereafter  be  observed ;  but  if  the 
two  days  should  pass  without  the  return  being  made,  even  though  it 
should  be  made  later,  if  it  be  not  before  the  parties  are  cited  for  judgment, 
the  party  who  shall  have  removed  the  record  shall  always  have  judg- 
ment rendered  against  him,  in  the  terms  of  the  admonition. 

349.  ART.  525.  If  there  should  be  a  number  of  defendants  or  com- 
plainants, and  one  of  them  only  should  incur  the  fault  referred  to  in  article 
52i,§  if  said  party  should  be  one  of  the  defendants,  said  party  only 
shall  be  adjudged  in  the  form  expressed,  to  perform  in  full  the  obligation 
the  subject  of  the  suit;  and  if  the  party  should  be  among  the  com- 
plainants, he  shall  be  adjudged  to  lose  the  rights  corresponding  to  him 
in  proportion,  in  accordance  with  the  complaint,  and  to  indemnify  the 
damages  which  his  co-complainants  may  suffer  through  his  fault.  This 
shall  be  so  stated  in  the  admonition. 

350).  ART.  526.  If  any  of  the  parties  should  have  judgment  rendered 

*  The  provisions  of   this  and  of   the  preceding  article  regarding    the  Supreme 
Court,  are  applicable  also  to  the  Superior  Courts.     (Angarita.) 
f  Ordinal  345. 
\  Ordinal  342. 
§  Ordinal  342. 


65 

against  them  in  the  terms  of  the  preceding  articles,  he  shall  have  the 
right  to  be  indemnified  for  all  he  may  pay,  or  for  the  damage  he  may 
suffer  by  the  attorney  in  fact  guilty  of  delay  in  returning  the  record. 

351).  ART.  527.  In  no  case  shall  the  provisions  of  article  521  apply 
against  the  Nation,  and  the  return  of  the  records  which  the  respective 
Agents  of  the  Department  of  Public  Prosecution  may  have  removed  in 
pursuance  of  a  reference  shall  be  obtained  by  a  means  of  successive 
compulsory  process  consisting  of  fines  which  the  Federal  Supreme  Court 
or  the  Court  or  Judge  in  a  proper  case,  taking  cognizance  of  the  cause, 
shall  declare  them  to  have  incurred,  which  fines  shall  never  exceed,  each 
time,  twenty-five  pesos. 

352. 

352).  The  Federal  Supreme  Court  or  the  Court  or  Judge,  respectively, 
shall,  on  the  petition  of  the  Agents  of  the  Department  of  Public  Prose- 
cution, .extend,  on  one  occasion  only  in  each  affair,  the  legal  terms  for 
the  references,  up  to  double  the  time  granted  by  this  Code  in  the  respec- 
tive case.  The  petition  shall  be  made  in  the  notification  of  the  order 
directing  the  return  of  the  process,  and  the  term  of  the  extension  shall 
begin  to  run  from  the  date  notice  of  the  granting  of  the  petition  is  given. 

334,  1596  subdivision  6. 

353).  ART.  529.  If  the  complaint  shall  have  been  filed  without  any 
documents  being  attached  thereto,  and  the  party  defendant  should  state 
after  the  admonition,  or  before,  that  he  cannot  return  the  written  peti- 
tion, on  account  of  its  having  been  mislaid  or  lost,  the  Judge  shall  order 
that,  at  the  cost  of  the  person  making  such  statement,  a  certified  copy 
be  made  of  the  copy  which  should  have  remained  in  the  files,  and  the 
suit  shall  be  continued  therewith,  without  interrupting  the  terms  nor 
renewing  (retrotraer]  those  which  have  already  expired,  for  which  pur- 
pose a  certificate  of  what  has  taken  place  shall  be  made,  the  provisions 
of  article  518*  being  thereafter  observed. 

344  and  citations. 

354).  ART.  530.  In  addition  to  the  provisions  of  the  preceding  articles, 
the  party  who  should  fail  to  return  the  record  shall  be  subjected  to  a 
criminal  prosecution  for  fraudulent  removal  of  documents  filed  in  public 
archives. 

355.)  ART.  531.  The  party  who  should  be  comprised  in  the  cases  of 
the  preceding  articles,  reserves  his  right  to  recover  damages  of  the  third 
person  to  whose  fault  the  failure  to  return  the  record  may  be  due. 

*  Amended  by  article  34  of  Law  169  of  1896, 


66 

CHAPTER  XII. 
Transmission  of  records. 

356).  ART.  532.  Every  transmission  of  records  from  one  superior  or 
inferior  court  to  another,  shall  always  take  place  by  mail,  under  a  sealed 
and  addressed  cover,  with  a  statement  of  the  contents  upon  the  wrapper. 

358. 

The  following  article  is  supplemental : 

357).  ART.  69  of  Law  105  of  1890.  When  it  shall  be  necessary  to 
transmit  a  document  to  another  place  which  is  of  interest  only  to  the 
party  requesting  its  transmission,  the  Judge  may  deliver  it  to  him  for 
transmission  to  its  destination,  even  though  it  be  not  through  the  mails. 

358).  ART.  533.  If  there  should  be  no  mail  to  the  place  to  which  the 
records  are  to  be  transmitted,  they  shall  be  sent  by  special  messenger 
(por  expreso),  the  cost  of  which  shall  be  defrayed  by  the  party  interested, 
or  other  more  economical  means  shall  be  employed,  if  possible;  but  in 
no  case  shall  the  records,  or  a  portion  thereof,  be  entrusted  to  one  of  the 
parties,  when  such  party  might  derive  some  benefit  from  the  loss  or 
mislaying  thereof. 

Supplemented  and  amended  by  the  following  article : 

359).  ART.  70  of  Law  105  of  1890.  In  every  case  the  records  may  be 
transmitted  at  the  request  of  a  party,  by  courier  (special  messenger)  or 
special  mail,  the  cost  of  which  shall  be  defrayed  by  such  party,  pro- 
vided that  such  means  be  satisfactory  to  the  Judge  transmitting  the 
records  and  that  they  be  sent  through  the  respective  administration,  in 
accordance  with  the  post-office  laws  and  regulations. 

360).  Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  sub- 
rogated  by 

361).  ART.  71  of  Law  105  of  1890,  which  was  expressly  repealed,  and 
not  subrogated  by  article  87  of  Law  100  of  1892. 

362).  ART.  535.  For  the  purposes  of  the  provisions  of  this  chapter 
by  records  (autos}  shall  be  understood  not  only  the  civil  records  (cxpe- 
dientes)  but  also  the  dispatches,  letters  rogatory  and  any  papers  forming 
a  part  of  the  process. 

4- 

The  two  articles  which  follow  are  supplementary  : 

363).  ART.  67  of  Law  105  of  1890.  When  the  superior  authority  to 
which  an  appeal  is  taken  should  not  reside  in  the  same  place  as  the  Judge 
of  the  cause,  the  party  interposing  it  must  pay  the  postage  necessary  for 
the  transmission  and  return  of  the  record  by  mail,  and  fifty  cents  addi- 


67 

tional.  Such  payment  must  be  made  within  eight  days  next  after  that 
upon  which  the  record  may  have  been  received  in  the  respective  post- 
office. 

364).  ART.  68  of  Law  105  of  1890.  If  the  term  of  eight  days  should 
elapse  without  the  payment  of  the  postage  being  made,  the  Judge,  on  the 
petition  of  a  party,  shall  call  upon  the  person  who  interposed  the  appeal 
to  do  so.  If  three  days  after  the  demand  the  payment  shall  not  as  yet 
have  been  made,  the  said  Judge  shall  declare  the  decision  appealed 
from  to  be  final  after  the  hearing  and  determination  of  an  incidental 
issue  (articulation)  in  which  the  probatory  term  shall  not  exceed  forty- 
eight  hours,  the  Judge  being  permitted  to  make  orders  in  furtherance  of 
justice  (autos  para  mejor  proveer). 

The  Judge,  in  the  same  order  in  which  he  caljs  upon  the  party  to  make 
the  payment,  shall  direct  that  a  communication  be  sent  to  the  post- 
master not  to  forward  the  record  if  said  payment  should  be  made  after 
the  expiration  of  three  days. 

308,  584. 


68 

TITLE  II. 

Evidence  in  Civil  Matters. 

CHAPTER  i. 
Definitions  and  General  Rules. 

365).  ART.  536.  Evidence  is  the  means  of  ascertaining  the  truth  or 
falsity  of  the  facts  involved  in  the  judicial  debate. 

366).  ART.  537.  Evidence  is  divided  into  direct  and  indirect;  full  or 
complete  (prima  facie),  and  partial  or  deficient. 

367  to  370. 

367).  ART.  538.  Direct  evidence  is  that  which  shows  in  itself,  although 
in  different  degrees,  the  truth  of  the  acts  the  subject  of  controversy,  such 
as  confession  before  the  Judge,  the  declarations  of  eye  witnesses. 

Indirect  evidence  is  that  which  does  not  in  itself  show  the  truth  of  the 
act  questioned,  but  that  of  another  act  constituting  the  direct  evidence 
such  as  extrajudicial  confession,  established  by  witnesses,  and  the  dec- 
larations mentioned. 

368).  ART.  539.  Full,  perfect  or  complete  (prima  facie)  evidence  is 
that  which,  according  to  the  law,  leaves  the  Judge  sufficiently  instructed 
with  regard  to  the  truth  or  falsity  of  the  matter  to  render  judgment  for 
or  against  the  complainant. 

Partial,  deficient  or  incomplete  evidence  is  that  which  in  itself  does 
not  leave  the  Judge  sufficiently  enlightened  for  the  purpose  of  rendering 
a  judgment. 

382,  422,  424. 

369).  ART.  540.  Direct  and  indirect  evidence  may  be  full  or  partial. 
422,  424. 

370).  ART.  541.  Legal  evidence  is  the  following :  i.  Confession  of  the 
party,  in  or  out  of  court ;  2.  Legal  presumption ;  3.  Indications  or  con- 
jectures; 4.  Testimony  of  witnesses  or  experts;  5.  Public  or  private 
instruments;  6.  Ocular  inspection  by  the  Judge  of  the  cause ;  7.  Public 
reputation  (jama) ;  8.  Ancient  monuments ;  and  9.  The  laws  themselves 
when  presented  for  the  purpose  of  establishing  what  was  observed  at  a 
certain  time  and  was  or  is  in  force  in  another  place,  upon  the  matter  in 
question. 

558,  546,  547,  ?6o,  577  to  582,  664,  926,  970,  971,  984,  1594.    395 
to  399,  1757,  1763,  1 764  of  the  Civil  Code. 


69 

37 1).  ART.  542.  The  burden  of  proof  of  a  fact  or  thing  denied  by  the 
defendant,  rests  on  the  complainant,  and  the  former  must  be  absolved  if 
the  latter  should  fail  to  establish  what  the  defendant  denies.  The 
defendant  must  likewise  prove  the  facts  upon  which  he  bases  his  ex- 
ceptions. 

86. 

372).  ART.  543.  It  is,  hence,  a  general  rule  that  the  burden  of  proof 
of  a  thing  affirmed  rests  on  him  who  pleads  it,  and  not  on  him  who  denies 
it,  unless  the  denial  should  contain  an  affirmation.  Hence,  he  who 
denies  the  competency  of  a  witness,  for  example,  must  prove  his  point, 
because  it  contains  the  affirmation  of  the  fact  which  causes  the  incom- 
petency  of  the  witness. 

399- 

373).  ART.  544.  The  evidence  must  be  confined  to  the  matter  the 
subject  of  litigation;  irrelevant  evidence,  that  is  to  say,  that  which 
neither  benefits  one  party  nor  damages  the  other  in  the  suit  in  which  it 
may  be  adduced,  is  not  admissible. 

857. 

374).  ART.  545.  The  evidence  must  be  adduced  before  the  Judge  of 
the  cause,  with  the  citation  of  the  opposite  party;  but  this  is  not  an 
obstacle  to  the  taking  of  testimony  by  a  commissioned  Judge,  when  this 
should  be  necessary. 

447  to  450,  452,  453,  454,  518. 

375).  ART.  546.  In  order  that  the  parties  may  produce  their  evidence 
within  the  proper  term  in  each  suit,  the  Judge  must  make  an  order, 
stating  that  he  opens,  calls  or  receives  the  cause  for  the  taking  of  evi- 
dence, and  from  the  date  of  the  service  of  this  order  upon  the  parties,  the 
term  of  the  law  or  that  designated  by  the  Judge  begins  to  run,  without 
prejudice  to  each  party  presenting  his  evidence  any  time  after  being 
notified. 

325,  328,  337,  376. 

376).  ART.  547.  Justices  and  Judges  must  restrict  the  terms  for  the 
taking  of  evidence  when  they  are  not  peremptory;  and  they  cannot 
extend  them  to  that  allowed  by  the  law,  unless  the  party  requesting  the 
extension  shall  state  and  establish  the  necessity  therefor. 

727,  first  par. 


70 

377)-  ART.  548.  Notice  of  every  order  granting  or  extending  the 
probatory  term  must  be  served  on  all  the  parties. 

878,  560. 

378).  ART.  549.  There  shall  be  no  secrecy  (reserva)  in  the  evidence; 
the  Secretary  may  communicate  to  any  of  the  parties,  upon  his  request, 
the  evidence  adduced  by  the  opposite  party,  and  also  the  testimony 
which  may  have  been  taken  on  the  petition  of  the  party  making  the 
request. 

3"- 

EIGHTH  AMENDMENT. 

(Of  Law  46  of  1876.) 

379).  ART.  550.  The  entire  probatory  term  is  proper  for  the  asking 
and  taking  of  testimony. 

The  testimony  requested  in  time,  must  be  taken  and  added  to  the 
record  of  the  case  at  any  stage  of  the  proceedings,  provided  that  a  cita- 
tion for  judgment  shall  not  have  issued. 

The  probatory  term  having  expired,  only  such  instruments  and  docu- 
ments which  establish  acts  that  have  taken  place  after  said  term  shall 
be  admissible. 

450,  559,  56o,  876,  879,  908. 

580).  ART.  551.  Whenever  the  examination  of  a  thing  by  experts, 
the  comparison  of  signatures  or  other  similar  proceedings  are  requested 
in  evidence,  the  party  who  might  be  prejudiced  by  such  evidence  has  the 
right  to  be  present  at  the  taking  thereof,  and  must,  therefore,  be  cited 
in  advance ;  but  the  proceeding  shall  not  be  stayed  by  reason  of  his  failure 
to  attend. 

381).  ART.  552.  The  evidence  adduced  by  each  party  shall  be  kept 
in  a  separate  pamphlet. 

382).  ART.  553.  In  the  absence  of  a  legal  estimation  of  evidence,  the 
Judge  shall  give  it  a  value  according  to  his  conscience. 

368,  519  second  par.,  527,  558. 


NINTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

383).  ART.  554.  After  the  citation  of  the  parties  for  judgment,  no 
proceeding  (articulacidri)  regarding  evidence  shall  be  admitted. 

583,  877,  878,  559,  560. 


CHAPTER  II. 
Confession  of  the  Party. 

384).  ART.  555.  Confession  is  the  statement  made  by  one  of  the 
parties  of  the  truth  of  what  the  other  party  asserts  with  regard  to  his 
action  or  exception,  deduced  in  court. 

385).  ART.  556.*  The  confession  made  by  a  party,  voluntarily  and 
deliberately  in  answer  to  interrogatories,  in  answer  to  the  complaint  or 
in  any  other  judicial  act,  that  is  to  say,  before  the  Judge  of  the  cause  and 
his  Secretary,  is  full  proof  in  the  action  in  which  it  may  have  been  made, 
and  upon  the  point  of  fact  to  which  it  may  refer.  This  confession  is 
called  judicial. 

401,  406,  391,  393,  394,  395,  397,  530,  532,  533,  539,  544. 

386).  ART.  557.  Expressly  repealed  by  article  87  of  Law  100  of  1892, 
and  not  subrogated. 

387).  ART.  558.  In  order  that  the  confession  may  have  the  force  of 
full  proof,  it  is  necessary  that  the  person  making  it  be  capable  of  appear- 
ing in  court  by  himself. 

61  et  seq.,  401,  858. 

388).  ART.  559.  If  a  determinate  thing  or  amount  be  sued  for  or  in- 
quired about,  it  is  also  necessary  that  the  confession  be  determinate 
hereupon,  in  order  that  it  may  be  efficiently  binding  upon  the  person 
making  it ;  thus,  if  a  person  be  sued  for  the  payment  of  a  thousand  pesos, 
and  he  shall  make  answer  that  he  does  owe  the  complainant,  without 
specifying  the  amount  he  owes,  such  confession  is  not  efficient ;  but  in 
such  a  case  the  Judge  may,  ex  proprio  motu,  or  on  the  petition  of  a 
party,  require  the  defendant  to  state  the  amount  for  which  he  is 
debtor  and  he  shall  be  adjudged  to  pay  only  the  amount  he  states,  in  the 
absence  of  other  proof ;  this  should  be  observed  in  similar  cases. 

389).  ART.  560.  Expressly  repealed  by  article  338  of  Law  105  of  1890, 
and  subrogated  by  the  following : 

390).  ART.  72  of  Law  105  of  1890.  The  confession  made  in  court 
shall  be  proof  against  the  person  making  it  under  any  circumstance, 
even  though  it  be  in  a  different  action. 

391).  ART.  56 1. f  Extra-judicial  confession  is  that  made  out  of  court, 
in  a  conversation,  in  a  letter,  or  by  any  other  act  or  document  whose 
purpose  was  not  to  serve  as  proof  of  the  controverted  fact. 

A  confession  made  before  a  Judge,  not  the  one  taking  cognizance  of 

*  Amended  by  article  34  of  Law  169  of  1896. 
f  Amended  by  article  34  of  Law  169  of  1896. 


72 

the  cause,  nor  commissioned  by  the  latter,  or  not  competent  to  receive 
it  or  order  it  taken,  shall  also  be  considered  extra-judicial. 

385,  532. 

The  following  article  is  additional : 

392).  ART.  73  of  Law  105  of  1890.  No  person  shall  be  obliged  to 
testify  out  of  court  as  to  personal  acts  or  as  to  acts  from  which  he  may 
suffer  some  prejudice,  excepting  in  the  cases  and  with  the  formalities 
prescribed  in  Chapter  VII  of  Title  I,  Book  2,  of  the  Judicial  Code,  and 
this  only,  unless  the  person  requesting  a  new  declaration  shall  assure, 
under  oath,  that  the  first  one  has  been  lost  through  no  fault  of  his. 

234.     Law  169  of  1896,  article  34. 

393).  ART.  562.  As  a  general  rule,  an  extra-judicial  confession  does 
not  produce  anything  but  deficient  proof  or  grave  presumption. 

Nevertheless,  the  confession  which  a  debtor  may  make  of  the  debt  in 
the  presence  of  the  opposite  party  or  of  his  attorney,  with  a  statement 
of  the  amount  or  thing  due,  and  of  the  reason  or  cause  for  which  it  is  due, 
has  the  force  of  full  proof,  by  virtue  of  which  the  person  making  the 
confession  may  be  obliged  to  pay  the. debt,  unless  he  shall  prove  that  he 
has  paid  it,  or  been  relieved  therefrom  in  any  other  manner.  But  the 
aforesaid  confession  must  be  fully  proved. 

395,  397- 

394).  ART.  563.  If  in  the  confession  referred  to  in  the  preceding 
article,  the  person  making  the  confession  should  not  state  the  reason  for 
his  debt,  and  the  other  party  is  able  to  prove  it,  the  confession  shall 
always  have  the  force  of  full  proof. 

395).  ART.  564.  The  confession  made  in  a  testament  or  at  the  moment 
of  death,  is  also  full  proof  against  the  heirs  of  the  person  acknowledging 
himself  to  be  a  debtor,  or  who  confesses  to  having  received  what  was 
owed  him,  unless  the  intention  shall  be  seen  in  such  confession  of  de- 
frauding the  heirs,  or  of  violating  some  legal  provision,  as  in  such  case 
the  confession  shall  not  be  valid,  unless  the  person  favored  prove  the 
reason  of  the  debt,  or  the  payment  he  may  have  made. 

382,  412. 

396).  ART.  565.  If  the  testator  should  declare  that  a  person  is  his 
debtor  for  a  certain  sum,  and  the  heirs  shall  prove  that  the  amount  owed 
is  greater,  they  shall  be  entitled  to  the  recovery  of  the  excess,  unless  the 
remission  or  waiver  which  the  testator  may  have  made  of  the  excess  be 
proved. 

403. 


73 

397)-  ART.  566.  The  confession  made  by  the  parents  in  writing  or  in  a 
formal  entry,  the  authenticity  of  which  may  be  sufficiently  established, 
as  to  advances  made  to  their  children  by  reason  of  setting  up  in  business, 
is  also  full  proof. 

398).  ART.  567.  The  confession  may  be  simple  or  explained. 

A  simple  confession  is  that  made  by  the  party  affirming  the  fact  openly 
and  frankly. 

An  explained  confession  is  that  which  is  made  also  acknowledging  the 
fact,  but  adding  circumstances  or  modifications  which  restrict  or  destroy 
the  intention  of  the  opposing  party. 

399).  ART.  568.  When  the  circumstance  or  the  modification  added 
in  the  explained  confession  may  be  separated  from  the  act  the  subject 
of  the  question,  or  rather,  when  it  is  a  real  exception,  the  confession  is 
called  dividual  or  divisible,  and  it  has  all  the  force  of  an  absolute  or  simple 
confession;  unless  the  person  making  the  confession  shall  prove  the 
modification  or  circumstance  added;  but  when  this  circumstance  or 
modification  is  inseparable  from  the  fact  the  subject  of  the  question,  it 
is  called  individual  or  indivisible,  and  it  cannot  be  admitted  in  one  part 
and  be  rejected  in  another  by  the  adversary,  who,  if  he  shall  desire  to 
benefit  therefrom,  must  prove  the  modification  to  be  false. 

400).  ART.  569.  No  evidence  adduced  by  the  same  party  shall  be 
admitted  against  the  confession  he  may  have  made,  unless  it  be  pleaded 
that  the  confession  was  made  through  an  inculpable  error,  in  which  case, 
upon  proof  of  what  the  latter  consisted,  the  merits  of  the  confession  are 
destroyed. 

1769  of  the  Civil  Code. 

401).  ART.  570.  If  the  confession  shall  not  have  been  made  with  all 
legal  requisites,  anything  which  may  invalidate  it  and  destroy  its  legal 
value  may  be  pleaded  and  proved. 

387. 

402).  ART.  571.  The  confession  of  an  act  which  could  not  have 
occurred  by  reason  of  its  being  physically  impossible,  as  if  a  person  should 
state  that  one  older  than  himself  is  his  son,  shall  have  no  value  whatso- 
ever. In  the  same  manner,  a  confession  of  acts  which  the  person  con- 
fessing could  not  have  executed,  is  invalid. 

403).  ART.  572.  The  confession  made  by  a  person  in  his  testament 
or  in  memoranda  which  he  may  have  left,  that  another  person  is  his 
debtor,  is  not  proof  against  the  latter. 

396. 

404).  ART.  573.  No  confession  can  be  demanded  or  required  upon 
shameful  or  criminal  acts  chargeable  to  the  party  who  is  to  make  answer, 
or  to  his  ascendants  or  descendants,  or  to  his  spouse,  or  to  his  brothers. 


74 

405).  ART.  574.  A  confession  prejudices  only  the  party  making  it; 
hence,  if  in  bankruptcy  proceedings  one  or  more  of  the  creditors  should 
prove  their  credit  by  the  confession  of  the  common  debtor,  such  evi- 
dence shall  serve  as  a  basis  for  the  payment  of  said  creditors  from  the 
property  of  the  insolvent ;  but  without  prejudice  to  the  other  creditors 
who  may  have  proved  their  credits  by  means  other  than  the  confession 
of  the  debtor. 

406).  ART.  575.  When  the  party,  in  answer  to  the  complaint,  should 
agree  to  the  facts  stated  by  the  complainant  and  to  his  right  of  action, 
such  confession  in  addition  to  being  proof,  relieves  the  complainant 
from  presenting  any  evidence;  and  then  the  Judge  shall  render  judg- 
ment, without  further  proceedings,  and  shall  fix  a  term  within  which  the 
defendant  is  to  fulfill  the  obligation  the  subject  of  the  suit,  if  he  is  not  to 
do  so  immediately,  or  if  the  law  does  not  fix  a  term. 

385,  856,  749,  750,  751. 

407).  ART.  576.  It  shall  be  understood  that  the  defendant  agrees  to 
the  substantial  facts  stated  in  the  complaint,  when  he  does  not  contra- 
dict them  either  directly  or  indirectly. 

848,  854,  855. 

408).  ART.  577.  When  the  Nation  shall  be  the  defendant,  and  the 
complaint  should  contain  points  of  fact,  even  though  the  representative 
thereof  agree  to  said  facts,  evidence  shall  always  be  taken  in  the  suit  to 
establish  such  facts. 

856,  858.     Law  169  of  1896,  article  9. 


CHAPTER  III. 
Presumption  of  Law. 

409).  ART.  578.  A  presumption  of  law  is  the  supposition  which  the 
law  makes  upon  certain  reasonable  antecedents,  that  such  a  fact  is  true 
in  order  to  deduce  therefrom  the  consequences  which  the  said  law 
establishes. 

He  who  has  a  presumption  of  law  in  his  favor  in  a  matter,  places  upon 
his  adversary  the  burden  of  the  proof  of  the  obligation. 

66,  1768  of  the  Civil  Code. 

410).  ART.  579.  Cases  of  legal  presumption  are  those  mentioned  in 
the  following  articles,  in  addition  to  those  which  the  law  may  establish 
separately. 


75 

4i  i).  ART.  580.  He  who  shall  have  paid  a  sum  by  error,  and  shall  be 
desirous  of  recovering  it,  must  prove  that  he  did  not  owe  it,  it  being 
presumed  that  no  one  pays  without  owing.  So  that  in  this  case,  the 
legal  presumption  is  in  favor  of  the  person  who  received.  But  if  the 
latter  should  deny  the  payment  absolutely,  and  the  complainant  should 
prove  such  payment,  even  though  he  do  not  prove  that  it  was  improper, 
it  shall  be  the  obligation  of  the  former  to  return  what  he  received,  if  he 
shall  not  prove  that  it  was  given  in  payment  of  a  legitimate  debt. 

412.)  ART.  581.  If  a  father,  after  having  left  to  a  son  by  his  testament 
all  that  the  law  permits  him,  by  reason  of  legitime  or  betterment  (mejora) 
shall  direct  that  a  certain  sum  should  be  restored  to  him,  stating  that  it 
was  given  him  for  said  son  by  a  relative  of  his,  or  that  it  is  the  value  of  a 
thing  belonging  to  the  said  son  or  the  mother,  or  that  he  acquired  it  with 
said  object  in  view,  the  legal  presumption  is  in  such  case  in  favor  of  the 
heirs,  and,  consequently,  the  son  favored  must  prove  the  truth  of  the 
debt  confessed  by  the  father. 

395- 

413).  ART.  582.  The  law  presumes  that  children  born  during  matri- 
mony are  legitimate,  if  the  parents  should  not  be  at  a  great  distance 
from  each  other  at  the  time  that,  taking  into  consideration  the  birth,  the 
conception  should  have  taken  place,  according  to  the  substantive  civil 
laws.  But  the  presumption  is  destroyed  by  the  statement  of  the  hus- 
band, corroborated  by  the  confession  of  the  wife. 

213  et  seq.  of  the  Civil  Code. 

414).  ART.  583.  The  law  presumes  that  a  person  is  the  owner  of  the 
thing  which  belonged  to  him  at  another  time,  or  to  his  ascendants,  or  to 
the  person  whose  heir  he  is ;  and  consequently  he  shall  be  maintained 
in  the  ownership  thereof,  until  another  person  shall  actually  prove  that 
it  belongs  to  him. 

415).  ART.  584.  If  a  person  shall  prove  that  at  some  time  he  was  the 
possessor  of  a  thing  actually  in  litigation,  and  maintains  that  he  con- 
tinues still  in  possession,  the  law  presumes  that  he  tells  the  truth,  as 
long  as  the  person  disputing  such  possession  shall  not  prove  the  contrary. 

780,  3d  paragraph,  of  the  Civil  Code. 

416).  ART.  585.  If  a  person  should  receive  a  movable  thing,  in  pledge, 
as  a  loan,  or  in  deposit,  it  shall  presumed  that  he  has  not  returned  it  to 
its  owner,  as  long  as  he  does  not  prove  said  return,  and  he  is,  therefore, 
responsible  for  the  same,  unless  it  shall  have  been  lost  by  theft,  force  or 
robbery,  or  any  other  accident  which,  according  to  the  law,  relieves  him 


76 

of  the  obligation  contracted;  but  in  every  case  he  shall  be  obliged  to 
furnish  the  proof  necessary  therefor. 

63,  1604,  2203,  2206,  2247,  2252,  2281,  2428  of  the  Civil  Code. 

417).  ART.  586.  He  who  should  promise  his  debtor  never  to  demand 
the  sum  or  thing  which  he  may  owe  him,  shall  not  have  the  right  to 
demand  it  of  the  heir,  if  the  latter  should  prove  the  promise  made  to  the 
debtor;  as  the  law  presumes  that  he  who  promises  a  thing  to  another 
offers  it  equally  to  his  heirs,  even  though  the  latter  should  not  be  ex- 
pressly named. 

But  if  the  creditor  were  able  to  prove  that  he  made  no  mention  of  the 
heir,  especially  in  order  that  the  latter  should  not  benefit  by  the  promise, 
as  it  was  simply  a  favor  extended  to  the  debtor  during  his  lifetime,  the 
heir  shall  then  be  obliged  to  make  the  payment. 

1155  of  the  Civil  Code. 


CHAPTER  IV. 
Indications  and  Conjectures. 

418).  ART.  587.  An  indication  is  a  certain  and  known  fact,  which  by 
reason  of  its  more  or  less  intimate  relation  to  the  fact  in  question,  may 
serve  to  incline  reason  to  the  belief  in  the  reality  of  the  second  fact. 

422,  423. 

419).  ART.  588.  A  conjecture  is  the  favorable  judgment  which  we 
form  as  to  the  truth  of  the  matter  in  controversy,  by  virtue  of  data 
which  is  fallible  but  not  unworthy  of  consideration. 

422,  424,  428. 

420).  ART.  589.  A  single  indication  is  not  full  or  complete  proof, 
unless  it  be  a  necessary  indication.  Indications  are  necessary  when  the 
connection  or  relation  between  the  fact  indicated  and  the  fact  the  sub- 
ject of  the  investigation  is  such,  that  if  one  existed,  the  other  could  not 
but  have  existed. 

421).  ART.  590.  Unnecessary  indications  form  full  proof  only  when 
they  are  apparent  (vehementes)  and  numerous,  but  connected  with  each 
other,  all  of  them  tending  to  establish  beyond  doubt  the  truth  of  the 
fact  in  controversy. 

424. 

422).  ART.  591.  Incomplete  proof  may  be  weighed  as  indications  and 
as  sources  of  conjectures,  and  in  a  plural  number  may  form  complete 
proof,  if  they  have  the  requisites  mentioned  in  the  preceding  article. 


77 

423).  ART.  592.  When  many  indications  relate  to  one  indication 
only,  and  when  the  arguments  upon  one  fact  depend  all  upon  a  single 
argument,  the  sum  of  the  latter,  no  matter  how  numerous  they  be,  do 
not  form  full  proof,  and  all  together  form  but  one  single  indication  and 
one  single  argument. 

424).  ART.  593.  Indications  and  conjectures  are  more  or  less  apparent 
(vehementes]  in  proportion  to  the  greater  or  less  relation  or  connection 
between  the  facts  which  constitute  them  and  that  which  it  is  desired 
to  ascertain. 

Therefore,  direct  incomplete  evidence  furnishes,  in  equality  of  circum- 
stances, indications  and  conjectures  superior  to  those  arising  from 
indirect  incomplete  evidence. 

421. 

425).  ART.  594.  Accessory  facts  which  furnish  the  indications  or  the 
conjectures  relative  to  the  fact  which  is  being  ascertained,  must  be  fully 
proved ;  and  they  shall  never  be  proved  by  means  of  other  indications. 

CHAPTER  V. 
Witnesses. 

426).  ART.  595.  A  witness  is  any  person,  man  or  woman,  who  testifies 
in  an  action  upon  the  facts  controverted  therein. 

437  to  442,  463,  464,  465,  470,  478,  479,  521,  522. 

427).  ART.  596.  In  order  that  a  witness  may  be  competent  and  his 
testimony  worthy  of  consideration,  it  is  necessary  that  he  should  not  be 
excepted  by  reason  of  lack  of  knowledge,  of  probity  or  of  impartiality. 

428).  ART.  597.  Lack  of  knowledge  is  presumed:  i.  In  an  insane 
person,  an  imbecile  and  an  intoxicated  person,  while  in  such  condition ; 
2.  In  him  who  for  any  other  cause  may  be  deprived  of  reason  at  the  time 
of  testifying;  3.  In  a  person  under  fourteen  years  of  age;  but  he  who 
shall  have  attained  said  age  may  testify  even  to  acts  which  have  occurred 
before,  if  he  shall  show  that  he  recollects  them  well.  The  testimony  of 
a  person  under  fourteen  and  over  ten  years  of  age,  may  serve  to  form  a 
conjecture,  which  shall  be  more  or  less  grave  according  to  the  develop- 
ment of  the  intellectual  faculties  of  the  deponent. 

419,432,465. 

429).  ART.  598.  The  following  cannot  be  witnesses,  by  reason  of  want 
of  probity:  i.  He  who  shall  have  some  time  testified  falsely;  2.  A 
falsifier. 

433- 


78 

43°)  ART.  599.  The  following  cannot  be  witnesses,  by  reason  of  want 
of  impartiality:  i.  The  descendant  in  favor  of  his  ascendant,  nor  vice 
versa,  excepting  in  causes  of  age  or  relationship;  2.  A  woman  for  her 
husband,  nor  the  latter  for  his  wife,  nor  a  brother  for  another,  while 
living  under  the  paternal  power;  3.  He  who  is  a  party  in  the  cause  and 
his  servants;  4.  A  bitter  enemy  (enemigo  capital);  5.  The  attorney, 
defender,  or  patron  (patrono),  for  his  party  or  client;  6.  The  tutor  or 
curator  for  his  ward  or  minor,  nor  the  latter  for  his  tutor  or  curator;  7. 
He  who  sold  a  thing,  in  a  suit  involving  said  thing  and  in  favor  of  the 
purchaser;  and  8.  The  companion,  partner  or  co-owner,  in  a  suit  upon 
the  common  thing  or  business. 

434- 

431).  ART.  600.  The  members  of  municipal  corporations  and  the 
members  of  congregations,  colleges  or  universities,  may  testify  in  suits 
which  only  interest  in  common  their  respective  corporations  or  com- 
munities. 

432).  ART.  60 1.  Witnesses  incompetent  on  account  of  a  lack  of  know- 
ledge cannot  be  presented  by  either  of  the  parties,  excepting  a  minor, 
who  may  be  presented  for  the  purpose  of  article  597,*  in  its  second  part. 

433).  ART.  602.  Witnesses  incompetent  by  reason  of  want  of  probity 
cannot  be  presented  in  a  suit  by  any  of  the  parties. 

429. 

434).  ART.  603.  Witnesses  incompetent  by  reason  of  want  of  impar- 
tiality, may  be  presented  by  the  party  opposing  that  in  whose  favor  the 
law  supposes  he  has  an  interest  in  testifying ;  and  their  testimony  shall 
be  made  competent  by  this  mere  fact,  in  all  parts  thereof,  unless  the 
party  who  presented  such  witnesses  shall  have  protested  at  the  time  of 
presenting  them,  that  only  the  favorable  portion  of  their  statements 
was  to  be  considered. 

430    435- 

435).  ART.  604.  Notwithstanding  the  provisions  of  the  preceding 
article,  one  spouse  can  never  be  required  to  testify  against  the  other. 
nor  a  son  against  his  father,  nor  the  latter  against  the  former. 

436. 

436).  ART.  605.  Nor  can  the  following  be  required  to  testify:  i.  The 
lawyer  or  attorney  regarding  the  confidences  received  by  him  from  his 
clients  with  regard  to  the  suit  he  manages;  2.  A  confessor,  regarding 

*  Ordinal  428. 


79 

the  revelations  made  to  him  by  the  penitent  person;  3.  The  Judge  of 
the  cause,  when  his  testimony  should  be  unnecessary  by  reason  of  the 
sufficiency  of  other  evidence  on  the  same  fact. 

437).  ART.  606.  A  witness  cannot  alone  establish  full  proof,  but  only 
a  strong  presumption  when  he  is  competent. 

438).  ART.  607.  Two  witnesses  competent  to  testify,  who  corroborate 
each  other  as  to  the  fact  and  the  circumstances  of  mode,  time,  and  place, 
make  full  proof. 

445,  446. 

439).  ART.  608.  The  testimony  of  a  witness  deposing  upon  some  fact 
by  reason  of  having  heard  it  from  others,  shall  not  have  any  force, 
unless  the  deposition  is  on  a  very  old  matter,  or  when  it  is  desired  to 
establish  the  public  reputation. 

440).  ART.  609.  Declarations  as  to  words  never  form  proof  as  to  the 
facts,  but  they  do  as  to  the  words,  whenever  the  witness  shall  testify  to 
having  heard  them  expressed,  and  in  such  case  the  uniformity  of  the 
two  witnesses  must  refer  to  the  words  and  likewise  to  the  circumstances 
which  may  alter  or  modify  their  meaning. 

470. 

441).  ART.  6 10.  The  statement  of  a  witness  notably  contradicting 
himself  in  the  same  declaration,  shall  not  be  conclusive  as  to  mode, 
place,  time  and  other  circumstances  of  the  matter.  Nor  shall  the  testi- 
mony of  a  witness  testifying  under  a  bribe  or  corruption  have  any  value 
whatsoever. 

443- 

442).  ART.  61 1.  Expressly  repealed  by  article  398  of  Law  105  of  1890, 
and  subrogated  by  the  following : 

443).  ART.  75  of  Law  105  of  1890.  When  the  testimony  of  the  wit- 
nesses presented  by  one  party  or  by  both,  should  be  contradictory  so 
that  with  regard  to  each  party  there  may  be  a  plural  number  of  com- 
petent witnesses,  the  Judge  must  consider  the  testimony  of  those  who, 
according  to  the  rules  of  legal  judgment  (critica)  he  should  believe  are 
telling  the  truth  or  are  closer  thereto,  and  who  have  the  better  reputa- 
tion, even  though  there  be  a  greater  number  on  the  other  side.  If  they 
should  be  equal  as  to  the  circumstances  of  their  statements  and  persons, 
he  must  judge  by  those  greater  in  number ;  and  if  there  should  be  equality 
in  the  number  also,  he  must  ignore  the  witnesses  on  both  sides,  and 
decide  the  cause  from  the  result  of  the  other  evidence. 

444).  ART.  612.  Should  there  be  contradiction  between  a  public 
instrument  and  the  statements  of  the  witnesses  present  at  the  execution 


8o 

thereof,  the  instrument  must  be  credited  if  it  accord  with  the  protocol 
or  register  and  the  Notary  enjoyed  or  enjoys  a  good  reputation ;  but  if 
the  Notary  should  not  have  enjoyed  or  does  not  enjoy  a  good  reputation, 
and  the  instrument  should  have  been  recently  made,  the  witnesses  are 
to  be  credited,  even  though  said  instrument  agree  with  the  protocol. 

445- 

445).  ART.  613.  In  order  to  prove  the  falsity  of  an  instrument  exe- 
cuted before  a  Notary,  four  competent  witnesses  are  necessary  to  depose 
that  the  party  was  in  a  different  place  on  the  day  of  the  execution  of  the 
instrument ;  but  if  said  instrument  were  a  private  one,  two  witnesses  to 
testify  to  said  effect  shall  be  sufficient. 

444,  526,  527,  528,  446. 

446).  ART.  614.  In  order  to  prove  the  payment  of  a  debt  by  witnesses 
when  evidence  of  said  debt  is  embodied  in  a  public  instrument,  five  wit- 
nesses are  necessary  to  testify  that  they  were  present  when  the  payment 
was  made. 

447).  ART.  615.  In  order  that  the  statements  of  the  witnesses  may  be 
considered  as  proofs  in  ordinary  actions,  it  is  necessary  that  their  testi- 
mony be  received  or  ratified  by  the  Judge  of  the  cause  within  the  pro- 
batory  term  and  with  the  previous  citation  of  the  opposite  party,  reserv- 
ing the  cases  of  article  619.* 

450. 

448).  ART.  6 1 6.  When  in  such  actions  the  depositions  of  witnesses 
taken  before  another  judge  or  for  another  matter,  should  be  presented, 
it  shall  be  necessary  that  during  the  probatory  term,  and  on  the  petition 
of  the  person  interested,  they  be  ratified  after  the  citation  of  the  opposite 
party,  without  which  requisite  they  cannot  be  considered  as  proof  when 
judgment  is  rendered. 

450,  451,  472. 

449).  ART.  617.  When  after  a  summary  investigation  a  suit  should  be 
prosecuted  in  which  there  is  a  probatory  term,  the  witnesses  shall  be 
ratified  after  the  citation  of  the  opposite  party,  without  which  requisite 
the  statements  of  such  witnesses  cannot  be  considered  as  proof  in  the 
final  judgment. 

472. 

This  and  the  two  articles  preceding  it  have  been  supplemented  by  the 
following  article: 

*  Ordinal  452. 


8i 

450).  ART.  74  of  Law  105  of  1890.  In  order  that  the  statements  of 
the  witnesses  may  be  considered  as  proof  in  the  suits  having  a  proba- 
tory  term,  it  is  necessary  that  they  be  received  by  the  Judge  of  the 
cause  or  by  the  commissioner,  during  the  course  of  the  suit,  before 
citation  for  judgment,  and  provided  that  the  taking  of  the  deposi- 
tions should  have  been  requested  during  the  said  probatory  term. 

If  the  depositions  should  have  been  taken  out  of  court,  the  witnesses 
must  ratify  the  same  during  the  course  thereof,  before  the  Judge  of  the 
cause  or  the  commissioner,  it  being  furthermore  necessary  that  the  con- 
ditions referred  to  in  the  preceding  paragraph  be  attendant. 

447,  448,  449,  451,  472. 

451).  ART.  6 1 8.  When  by  reason  of  the  death  of  a  witness  who  had 
testified  judicially,  his  deposition  could  not  be  ratified,  the  party  pre- 
senting the  statement  of  such  witness  must  request  that,  with  the 
citation  of  the  opposite  party,  competent  witnesses  testify  to  the  ve- 
racity and  good  reputation  of  the  deceased  witness,  and  that  the  Judge 
and  the  Secretary  before  whom  the  deposition  was  made,  declare  if 
possible,  whether  such  deposition  was  really  made  by  the  said  witness. 
After  such  confirmation,  the  deposition  shall  be  considered  as  legally 
ratified. 

452).  ART.  619.  The  testimony  requested  during  the  probatory  term 
may  be  taken  through  the  commissioned  Judge,  when  the  witness,  by 
reason  of  his  advanced  age,  sickness,  absence  at  a  distance  of  more  than 
fifteen  kilometers,  or  other  grave  impediment,  should  not  be  able  to 
appear  before  the  Judge  of  the  cause. 

374,  453>  454,  455- 

453).  ART.  620.  When  the  reason  for  the  delegation  of  the  examina- 
tion of  the  witnesses  should  be  their  absence,  the  commission  must  be 
entrusted  to  one  of  the  Judges  of  the  place  of  residence  of  the  witness, 
and  in  the  event  of  the  impediment  or  recusation  of  said  Judges,  to  their 
legal  substitutes,  transmitting  to  them  the  interrogatories  presented, 
which  must  first  be  communicated  to  the  opposite  party,  together  with 
the  order  directing  the  issue  of  the  dispatch,  in  order  that  if  cross  inter- 
rogatories are  made,  they  may  be  added  to  the  said  dispatch. 

454,  455- 

454).  ART.  621.  In  case  of  the  absence  of  the  witnesses,  the  Judge  of 
the  cause  may  also,  if  he  deem  it  advisable,  or  on  the  petition  of  any 
of  the  parties,  direct  that  the  witnesses  appear  before  him  to  give  their 
testimony,  at  the  expense  of  the  party  who  may  have  requested  their 
depositions,  in  the  first  case,  and  of  that  who  may  have  requested  the 
appearance,  in  the  second. 


82 

The  witnesses  on  such  occasion,  must  be  reimbursed  for  their  travel- 
ling expenses  and  their  stay  in  the  place  where  they  testify  for  such 
time  as  may  be  indispensable. 

455- 

455).  ART.  622.  If  the  witnesses  reside  in  a  foreign  country,  letters 
rogatory  shall  be  transmitted,  through  the  Secretary  of  Foreign  Affairs 
of  the  Union,  to  one  of  the  judicial  authorities  of  said  countiy,  who  may, 
under  the  laws  of  the  same,  be  of  competent  jurisdiction  for  this  purpose, 
in  order  that  he  may  receive  the  depositions  and  return  them  to  the 
said  Secretary,  through  the  Colombian  Diplomatic  or  Consular  Agent, 
or  that  of  a  friendly  nation  residing  in  said  country. 

In  the  case  of  this  article  the  depositions  may  also  be  received  by  the 
Diplomatic  or  Consular  Agent  of  the  Union,  if  the  witnesses  should  be 
willing  (se  ollanaren)  to  give  their  testimony  before  them,  and  it  should 
not  be  inconvenient  to  give  it  before  the  authorities  of  the  foreign 
country  in  which  the  witnesses  may  reside. 

The  cost  of  taking  the  testimony,  in  the  case  of  this  article,  shall  be 
defrayed  by  the  party  requesting  it. 

The  testimony,  when  received  by  the  respective  foreign  authority, 
shall  be  authenticated  by  the  respective  Colombian  Diplomatic  or  Con- 
sular Agent,  or  by  that  of  a  friendly  nation. 

104. 

456).  ART.  623.  The  Judges  of  First  Instance  shall  send  the  letters 
rogatory,  in  the  case  of  the  preceding  article,  to  the  President  or  Gov- 
ernor of  the  respective  State,  in  order  that  the  latter  may  transmit  them  to 
the  Secretary  of  Foreign  Affairs  of  the  Union. 

457).  ART.  624.  Persons  prevented  by  sickness  or  by  any  other 
cause,  the  matrons  or  mothers  of  a  family  and  unmarried  ladies,  shall 
have  their  testimony  or  confessions  taken  in  their  houses  or  dwelling 
places  by  the  Judge  of  the  cause  or  by  a  commissioner.  In  such  cases, 
the  parties  shall  be  advised  of  the  day  and  hour  when  the  proceeding  is 
to  be  had,  to  permit  their  attendance,  if  they  should  so  desire;  but  their 
failure  to  be  present  shall  not  be  an  obstacle  to  the  taking  of  the  state- 
ment or  confession. 

460. 

458).  ART.  625.  The  summons  of  the  witnesses  or  experts  who  are 
to  testify,  shall  be  made  by  means  of  a  subpoena  signed  by  the  Judge  of 
the  cause,  in  which  shall  be  stated  the  day,  the  hour  and  the  place 
where  they  are  to  appear,  and  the  purpose  of  the  citation ;  such  citation 


83 

shall  be  made  for  the  same  day,  or  for  one  of  the  three  following,  accord- 
ing to  the  distance  and  urgency  of  the  case. 

460,  461,  462. 

459).  ART.  626.  The  subpoena  shall  be  served  upon  the  witness  "by 
the  Secretary,  or  by  an  official  of  the  superior  or  inferior  court,  under 
the  liability  of  the  Secretary,  who,  as  well  as  the  official  in  a  proper  case, 
shall  require  that  the  person  cited  sign  the  subpoena,  and  that  if  pre- 
vented from  appearing,  he  so  state. 

Should  he  not  wish  or  be  unable  to  sign,  the  bearer  of  the  subpoena, 
if  he  be  a  subordinate  employee  of  the  inferior  or  superior  court,  shall 
call  a  witness  by  whose  testimony  the  fact  of  the  witness  having  been 
cited  can  be  established,  and  if  the  Secretary  should  have  been  the 
bearer  of  the  subpoena,  his  mere  statement  in  writing  shall  be  sufficient 
evidence  of  the  citation. 

198. 

460).  ART.  627.  Any  person  who  shall  have  been  summoned  in  legal 
form  as  a  witness  or  judicial  expert,  must  appear  to  give  the  testimony 
asked  of  him;  should  he  fail  to  do  so,  compulsory  process  shall  be 
employed  in  the  form  of  fines  until  he  shall  appear  or  by  arrest  for  diso- 
bedience to  the  order  of  the  Judge.  Said  fines  may  be  as  high  as  ten 
pesos. 

From  this  provision  are  excepted:  Senators  and  Representatives, 
while  enjoying  immunity,  the  President  of  the  Republic,  and  the  Secre- 
taries of  State,  the  Justices  of  the  Federal  Supreme  Court,  the  Attorney 
General  of  the  Nation,  the  Governors  or  Presidents  of  the  States,  Gen- 
erals in  service  and  every  superior  Judge  with  respect  to  the  one  before 
whom  he  is  to  testify;  all  these  persons  shall  give  their  testimony  by 
means  of  sworn  certificates,  for  which  purpose  the  Judge  or  Justice 
of  the  cause  shall  send  them  a  communication,  transmitting  a  copy  of 
what  may  be  necessary,  or  the  original  proceedings,  if  this  should  not  be 
inadvisable  or  there  should  be  no  risk  of  loss. 

457,  458,  1604. 

Supplemented  by  the  following : 

461).  ART.  76  of  Law  105  of  1890.  From  the  provisions  of  the  first 
paragraph  of  article  627  *  of  the  Judicial  Code,  are  excepted,  in  addition 
to  the  persons  referred  to  in  the  second  paragraph  of  said  article,  the  fol- 
lowing: The  Vice- President  of  the  Republic,  the  Ministers  of  the  Cabi- 
net (del  Despacho),  the  justices  of  the  superior  courts  and  the  prosecut- 
ing attorneys  of  the  same,  and  the  members  of  the  Council  of  State. 


*  Ordinal  460. 


84 

The  Archbisops,  Bishops,  Provisors  and  Capitular  Vicars,  are  also 
excepted. 

All  those  excepted  shall  testify  as  provided  in  the  second  paragraph 
of  the  said  article. 

462).  ART.  628.  A  note  of  request  shall  be  sent  to  the  Diplomatic 
agents  or  ministers  of  foreign  nations  whose  testimony  may  be  desired, 
with  a  copy  of  what  may  be  proper,  and  if  the  Agent  or  Minister  thus 
called  upon  should  be  willing  to  testify,  he  shall  do  so  by  means  of  a 
written  certificate. 

This  provision  applies  to  the  members  of  the  household  and  of  the 
family  of  foreign  diplomatic  agents  or  ministers. 

If  the  testimony  requested  were  that  of  some  servant  or  domestic  of 
such  diplomatic  agents,  it  shall  be  received  in  the  ordinary  form,  after 
securing  the  consent  of  the  respective  Agent  or  Minister,  which  shall  be 
requested  by  means  of  a  note. 

Both  in  the  case  of  the  preceding  paragraph  as  in  the  first  one  of  this 
article,  the  note  referred  to  therein  shall  be  addressed  through  the 
Department  of  Foreign  Affairs  of  the  Union. 

458. 

463).  ART.  629.  The  witnesses,  before  testifying,  must  take  an  oath, 
before  the  Judge  and  his  Secretary,  not  to  depart  from  the  truth. 

1599- 

464).  ART.  630.  After  the  administration  of  the  oath,  the  articles  of 
the  Penal  law  regarding  perjury  and  false  witness,  in  civil  matters, 
shall  be  read  to  the  witness. 

465).  ART.  631.  A  person  under  twenty-one  years  of  age  and  one  over 
fourteen,  does  not  need  a  curator  in  order  to  testify;  the  Judge  shall  see 
that  they  are  not  taken  advantage  of  by  captious  questions. 

428  subdivision  3,  432. 

466).  ART.  632.  The  witnesses  shall  be  examined  separately  and 
their  depositions  shall  be  written  in  the  same  manner,  and  be  signed  by 
the  Judge,  his  Secretary,  and  by  the  deponent  or  by  a  witness,  if  the 
former  should  not  be  able,  not  wish,  or  not  know  how  to  sign. 

TWELFTH  AMENDMENT. 
(Of  Law  53  of  1882.) 

467).  ART.  633.  Every  Judge  or  Justice  must  certify,  under  his  lia- 
bility, at  the  end  of  each  deposition,  that  he  received  it  directly  and 
personally,  hearing  it  from  the  witness  and  causing  it  to  be  written  in 
his  presence,  and  asking  the  witness  all  questions  tending  to  ascertain 


85 

the  full  truth  which  is  being  investigated  by  means  of  truthful  and  com- 
plete evidence. 

469,  470,  471. 

468).  ART.  634.  The  witness  shall  not  be  interrupted  in  his  state- 
ments, and  they  shall  be  written  exactly  as  he  makes  them,  it  being 
necessary  that  each  one  be  read  to  him  after  being  written,  and  the 
entire  deposition  when  concluded,  of  which  mention  shall  be  made  in 
the  said  deposition. 

474,  478,  479,  480. 

469).  ART.  635.  An  answer  of  the  witness  having  been  written,  the 
Judge  shall  immediately  ask  him  the  following  questions,  if  his  answei 
should  not  already  be  known  from  the  reply : 

"How  does  he  know  of  the  act  to  which  he  testifies ;  did  he  see  or  hear 
it,  or  does  he  know  thereof  in  some  other  manner?  On  what  day,  at 
what  time  and  at  what  place  did  the  act  referred  to  take  place?" 

467,471. 

THIRTEENTH  AMENDMENT. 
(Of  Law  53  of  1882.) 

470).  ART.  636.  In  no  case  shall  the  statement  of  a  witness  serve  as 
evidence,  if  he  fails  to  express  clearly  and  distinctly  the  means  by  which 
he  has  secured  information  of  the  acts  to  which  he  testifies  or  which  he 
claims  to  have  a  knowledge  of,  and  if  it  shall  not  result  from  such  state- 
ment that  the  witness  testifies  by  reason  of  his  own  direct  perceptions ; 
excepting  the  cases  in  which  the  laws  permit  a  declaration  upon  a 
knowledge  formed  by  inference;  but  in  such  case  the  ground  therefor 
must  be  stated.  The  evidence  of  experts  is  governed  by  the  special 
provisions  providing  therefor. 

467,  469,  471,  440. 

FOURTEENTH  AMENDMENT. 
(Of  Law  53  of  1882.) 

471).  ART.  637.  The  Judge  or  Justice  shall  address  to  the  witness  all 
questions  relative  to  the  circumstances  of  the  day,  hour  and  place 
where  the  act  testified  to  occurred,  and  to  all  other  conditions  which 
may  lead  to  ascertain  the  degree  of  certainty  with  which  the  witness 
testifies,  and  the  entire  truth  of  the  acts,  and  the  intellectual  and  moral 
conditions  of  the  witness.  With  regard  to  the  chronic  acts  which  the 


86 

witness  may  affirm,  he  must  be  asked  and  he  must  testify  as  to  how  he 
had  knowledge  of  the  acts  from  which  the  chronic  quality  of  those  of 
which  he  claims  to  have  knowledge  may  reasonably  be  inferred. 

467,  469,  470. 

472).  ART.  638.  The  ratifications  of  depositions  received  extra  - 
judicially,  shall  not  be  valid,  if  the  facts  declared  should  not  be  re- 
peated, that  is  to  say  if  the  witnesses  confine  themselves  to  stating 
that  they  affirm  or  ratify,  without  having  anything  to  add  or  take  away. 

448,  449,  450,  451. 

473).  ART.  639.  If  the  witness  should  state  that  in  order  to  make 
answer  to  a  question  he  must  recollect  the  facts  or  examine  documents , 
and  request  time  to  do  so,  the  Judge  shall  grant  it  if  he  should  believe 
it  reasonably  necessary. 

244. 

474).  ART.  640.  An  answer  that  "the  context  of  the  question  is 
true"  shall  not  be  admitted,  but  the  context  of  the  said  question  shall 
be  written  out  as  the  answer,  if  nothing  further  be  added. 

468. 

475).  ART.  641.  When  the  witnesses  should  give  evasive  or  ambigu- 
ous answers,  or  should  refuse  to  answer  pertinent  questions,  the  Judge 
may  compel  them  to  answer  categorically,  by  the  imposition  of  fines  or 
arrest,  and  even  by  imprisonment  "incomunicado,"  if  the  gravity  of  the 
matter,  the  malice  of  the  answer  or  the  audacity  of  the  refusal  should 
so  require. 

245,  248,  476. 

476).  ART.  642.  The  provisions  of  the  preceding  article  are  not  an 
obstacle  to  the  witnesses  replying  that  they  do  not  know  or  do  not  remem- 
ber the  facts  upon  which  they  are  questioned;  or  refusing  to  answer  in  the 
cases  in  which  it  is  not  licit  to  oblige  them  to  reveal  the  matters  upon 
which  they  may  be  questioned. 

477).  ART.  643.  The  proceedings  upon  depositions  shall  be  drafted 
without  leaving  blank  spaces,  and  without  abbreviations,  and  an  en- 
deavor shall  be  made  to  avoid  corrections  and  interlineations;  but  if  it 
should  be  necessary  to  change  or  interlineate  one  or  more  words,  attrn 
tion  shall  be  called  thereto  at  the  end  of  each  proceeding,  after  whidi 
those  who  are  required  to  sign  it  shall  do  so. 

478,  480. 


87 

478).  ART.  644.  Upon  the  conclusion  of  the  deposition,  when  it  is 
read  to  the  witness,  he  may  make  the  changes,  explanations  and  addi- 
tions which  he  may  deem  necessary,  which  shall  be  clearly  stated  at  the 
end  of  the  deposition,  without  changing  thereby  what  may  already  be 
written  therein. 

468,  480. 

479).  ART.  645.  Witnesses  who  do  not  know  how  to  write,  have  the 
right  to  seek  a  person  in  whom  they  have  confidence  to  sign  for  them  and 
read  the  deposition  to  them,  in  order  to  assure  themselves  that  what  they 
stated  is  exactly  expressed. 

480).  ART.  646.  The  witness,  before  leaving  the  room  where  he  gave 
his  testimony,  and  without  having  spoken  to  another  person,  may  im- 
prove or  explain  the  deposition  which  he  may  have  already  signed ;  and 
the  Judge  has  the  power  to  call  at  any  time  a  witness  to  explain  any 
doubtful  or  obscure  passage  in  his  deposition,  unless  citation  for  judg- 
ment shall  already  have  issued. 

477,  478. 

481).  ART.  647.  Each  party  may  challenge  the  witnesses  which  the 
other  party  may  have  presented ;  but  witnesses  can  be  challenged  only 
for  a  cause  which  invalidates  testimony  according  to  this  chapter. 

428,  429,  430,  432,  434. 

482).  ART.  648.  When  the  cause  for  challenge  should  be  lack  of  im- 
partiality, it  is  necessary  that  the  person  interested  plead  and  prove 
the  cause  of  challenge,  in  order  that  it  may  be  taken  into  consideration 
in  weighing  the  evidence. 

483^,.  ART.  649.  The  interrogatories  of  questions  shall  remain  in  the 
possession  of  the  Judge  of  the  cause,  or  of  the  Commissioner,  in  a  proper 
case,  and  be  held  confidentially  under  the  strictest  liability,  up  to  the 
moment  of  the  examination  of  the  witnesses ;  the  questions  shall  be  read 
immediately  after  reply  shall  have  been  made  to  the  principal  interrog- 
atory, or  after  the  answer  to  each  question,  at  the  will  of  the  party  whom 
he  presents. 

TENTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

484) .  ART.  650.  The  Secretaries  shall  inform  the  parties  of  the  deposi- 
tions received,  and  it  shall  be  the  duty  of  the  parties  to  call  the  attention 
of  the  Judges  to  the  errors  which  may  have  been  committed  in  their 
reception,  so  that  they  may  order  the  correction  thereof;  and  the  Judge 
shall  do  the  same  when  he  shall  know  of  the  defects  which  they  may  con- 
tain, even  though  the  parties  should  not  have  complained. 


88 

CHAPTER  VI. 
Experts. 

485).  ART.  651.  In  every  cause  whose  elucidation  shall  depend  upon 
the  principles  of  some  science  or  art,  or  in  which  it  may  be  necessary  to 
make  some  valuation  or  appraisal,  experts  shall  be  appointed ;  they  shall 
also  be  appointed  whenever  it  should  be  necessary  to  translate  documents 
into  the  Spanish  language,  and  when  handwriting  is  to  be  compared. 

499.  50i,  509,  55i  to  558,  561. 

486) .  ART.  652. ,  By  an  expert  is  understood  a  person  well  known  to  be 
qualified  and  educated  in  the  science  and  art  to  which  the  point  upon 
which  his  judgment  is  to  be  heard,  may  belong.  Whenever  there  are 
any  available,  professors  holding  diplomas  or  having  an  office  as  such, 
shall  be  preferred. 

487).  ART.  653.  Each  of  the  parties  shall  appoint  an  expert,  if  all 
should  not  agree  upon  the  appointment  of  one,  and  the  Judge  shall  ap- 
point another,  to  provide  against  disagreement  between  them,  which 
shall  be  decided  by  a  majority  of  all  the  experts ;  but  in  the  event  that 
all  should  disagree,  as  to  the  amount,  arithmetical  means  shall  be 
adopted. 

The  appointment  which  may  be  made  by  the  Judge  shall  be  communi- 
cated to  the  parties,  and  notice  of  the  appointment  made  by  each  party 
shall  be  communicated  to  the  opposite  one. 

489,  493,  509,  5io,  498,  1294,  1295. 

488).  ART.  654.  If  any  of  the  parties  should  not  appoint  his  expert, 
within  the  term  allowed  him,  such  expert  shall  also  be  appointed  by  the 
Judge. 

489).  ART.  655.  If  the  litigants  should  number  more  than  two,  one 
expert  shall  be  appointed  by  those  who  support  the  same  claims,  and 
another  by  those  who  contradict  them.  If  no  agreement  can  be  reached 
for  this  appointment,  the  Judge  shall  write  the  names  of  the  experts 
proposed  upon  slips  of  paper,  and  the  one  drawn  by  lot,  shall  discharge 
the  duties  thereof. 

1295. 

490).  ART.  656.  The  functions  of  the  experts  appointed  are:  to  ex- 
amine into  the  reality  of  the  facts  or  things  upon  which  they  are  to  sub- 
mit an  opinion,  the  physical  or  moral  condition  of  persons ;  to  make  the 
measurements  or  appraisals  necessary,  and  to  present  tlu-ir  decisions  in 
writing,  stating  the  ground  therefor. 


89 

They  shall  perform  their  duties  together,  and  those  who  agree  shall 
draft  their  report  in  a  single  statement  signed  by  them ;  those  who  should 
not  agree,  shall  submit  their  report  separately. 

493- 

491).  ART.  657.  The  experts,  before  proceeding,  must  swear  in  the 
presence  of  the  Judge  and  his  Secretary,  to  discharge  their  trust  to  the 
best  of  their  knowledge  and  ability,  and  within  the  term  which  may  have 
been  allowed  them. 

*599- 

492).  ART.  658.  The  Judge  shall  clearly  state  in  the  order  appointing 
the  experts,  the  purpose  of  such  appointment,  and  the  term  within  which 
they  are  to  discharge  the  duties  entrusted  to  their  skill,  according  to  the 
conditions  of  time,  place  and  other  pertinent  ones,  and  if  there  should 
be  delay,  compulsory  process  may  be  employed  to  force  the  experts  to 
discharge  their  trust. 

498,  505- 

493).  ART.  659.  In  case  of  disagreement,  the  third  expert  appointed 
shall  repeat  the  work,  after  the  expiration  of  the  term  for  the  challenge 
without  any  having  been  brought,  the  persons  interested  and  the  other 
experts  attending  in  the  form  already  stated. 

490,  1295. 

494).  ART.  660.  Repealed  expressly  by  article  338  of  Law  105  of 
1 890,  and  subrogated  by  the  following : 

495).  ART.  77  of  Law  105  of  1890.  In  case  of  obscurity  or  insuffi- 
ciency in  the  report  of  the  experts,  the  necessary  explanation  may  be 
requested,  or  the  proper  extension,  by  any  of  the  parties,  or  by  the 
Judge  ex  proprio  motu.  And  if  their  report  were  erroneous,  by  reason 
of  the  experts  having  proceeded  under  an  essential  error,  fraud  or  ignor- 
ance, upon  one  of  these  defects  being  summarily  proved,  the  proceeding 
must  be  had  again,  on  the  petition  of  any  of  the  parties,  .and  with  the 
intervention  of  other  experts. 

An  order  may  likewise  issue,  on  the  motion  of  the  Judge  or  of  one  of 
the  parties,  that  the  experts  give  the  reasons  for  their  report. 

497- 

Supplemented  by  the  two  following  : 

496).  ART.  31  of  Law  100  of  1892.  The  petition  requesting  that  the 
experts  explain,  amplify  or  give  the  reasons  for  their  report,  in  accord- 


90 

ance  with  article  77  of  Law  105  of  1890,*  must  be  made  within  three 
days  from  the  date  of  service  of  notice  of  the  order  directing  that  the 
parties  be  informed  of  the  statement  of  the  experts ;  and  the  Judge 
shall  be  allowed  the  same  term  to  order  such  things  ex  proprio  motu. 

The  petition  for  a  new  proceeding,  in  the  event  of  the  experts  having 
proceeded  under  an  essential  error,  fraud  or  ignorance,  must  be  pre- 
sented with  the  proper  voucher,  within  six  days,  counted  in  the  same 
manner. 

497).  ART.  78  of  Law  105  of  1890.  The  Supreme  Court  and  the 
Superior  Tribunals,  by  an  order  in  furtherance  of  justice  (para  mejor 
pro-veer},  made  by  the  Justices  when  the  matter  shall  have  passed  to 
their  consideration  for  decision,  may  order,  if  they  deem  it  advisable, 
that  a  new  appraisal  be  made,  by  experts  which  the  said  Court  or  Tri- 
bunal, in  a  proper  case,  shall  appoint. 

495,  911  to  915. 

ELEVENTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

498).  ART.  66 1.  When  the  experts  appointed  by  the  parties  should 
not  appear  to  make  their  report  within  the  term  which  the  Judge  may 
have  allowed  them,  or  when  they  make  it  in  a  vague  and  indeterminate 
manner,  the  Judge  shall  appoint  another  expert  ex  proprio  motu  in  their 
place. 

492. 

The  following  article  is  supplemental : 

499).  ART.  79  of  Law  105  of  1890.  The  report  of  the  experts  is  not 
in  itself  full  proof ;  it  must  be  weighed  by  the  Judge  or  Justices,  when 
rendering  final  judgment,  taking  into  consideration  the  ground  upon 
which  the  experts  base  their  report,  and  the  other  evidence  adduced  in 
the  proceedings.  Consequently,  it  shall  be  the  duty  of  the  Justices  and 
Judges  to  fix  the  value  or  estimated  value  of  the  things  which  must  be 
appraised  or  valued  in  order  to  decide  the  controversy,  but  they  shall 
state  the  reasons  for  their  determination. 

382,  501,  558. 

500).  ART.  662.  Expressly  repealed  by  article  338  of  Law  105  of 
1 890  and  subrogated  by  the  following : 

501).  ART.  80  of  Law  105  of  1890.  The  declarations  of  professional 
persons  upon  facts  which  are  subject  to  tire  senses,  and  upon  which,  in 

*  Ordinal  495. 


accordance  with  their  profession,  they  express  their  opinion  with  cer- 
tainty, as  a  consequence  of  such  facts  and  the  indisputable  principles  of 
the  science,  form  full  proof;  but  what  they  may  state,  in  accordance 
with  what  they  presume,  shall  form  only  the  proof  of  indications,  more 
or  less  strong,  according  to  the  greater  or  less  skill  of  those  who  testify 
and  the  degree  of  certainty  with  which  they  depose. 

588. 

502).  ART.  663.  The  expert  appointed  by  the  Judge  may  be  chal- 
lenged by  any  of  the  parties  before  he  makes  his  report  in  writing,  for 
the  same  causes  for  which  witnesses  may  be  challenged. 

428,  429,  430,  504,  513,  511. 

503).  ART.  664.  A  party  or  individual  cannot  challenge  his  own 
expert  except  for  a  legal  cause  occurring  after  the  appointment  or  which 
was  not  learned  until  after  such  appointment.  But  the  expert  ap- 
pointed by  one  of  the  parties  may  be  challenged  by  the  other,  for  a  legal 
cause  prior  to  or  occurring  after  the  appointment. 

504- 

504).  ART.  665.  The  challenges  must  be  interposed  before  the  expira- 
tion of  the  third  day  after  the  appointment  of  the  experts. 

The  challenge  having  been  allowed,  the  expert  shall  be  replaced  in 
the  same  manner  in  which  the  appointment  may  have  been  made. 

505).  ART.  666.  In  the  case  of  survey  or  ocular  inspection,  the  ex- 
perts shall  conform  to  the  provisions  of  this  Book  for  such  cases. 

In  the  examination  of  authentic,  public  or  private  documents,  the 
experts  shall  act  in  accordance  with  the  orders  of  the  Judge  contained 
in  the  order  of  their  appointment. 

In  the  other  cases  in  which  an  examination  by  or  the  intervention  of 
experts  may  lie,  they  shall  confine  their  examination  and  opinion  to  the 
determinate  act  or  matter  with  regard  to  which  they  are  to  discharge 
their  trust. 

490,  492. 

TWELFTH  AMENDMENT. 

(Of  Law  46  of  1876.) 

506).  ART.  667.*  When  it  shall  be  necessary  to  fix  the  value  of  an 
estate  with  respect  to  which  there  existed  an  official  appraisal  upon  the 
tax  lists  of  the  States,  the  value  which  may  have  been  given  it 

*  Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  not  subrogated. 


92 

therein  shall  be  observed,  unless  the  party  prejudiced  by  such  valua- 
tion shall  establish  that  he  did  not  consent  thereto,  in  which  case  the 
valuation  shall  be  ordered  fixed  by  experts. 

507).  ART.  668.  The  report  of  the  experts  shall  be  communicated  to 
the  parties  in  order  that  the  latter  may  state  what  they  may  deem 
proper. 

508).  ART.  669.  Whenever  experts  or  interpreters  are  spoken  of  in 
this  Code,  it  shall  be  understood  that  the  provisions  of  this  chapter  are 
to  be  observed  with  regard  to  the  same;  excepting  when  in  some  case 
special  provisions  with  regard  to  their  appointment,  challenge,  etc., 
may  be  made. 

509).  ART.  670.  The  Judge  must  appoint  interpreters  in  the  follow- 
ing cases : 

1.  If  any  of  the  litigants  or  of  the  witnesses  should  not  understand 
the  Spanish  language,  nor  be  able  to  make  himself  understood  therein, 
and  it  should  be  necessary  to  interrogate  or  examine  him. 

2.  If  any  of  the  witnesses  should  be  deaf  and  dumb  and  not  be  versed 
in  the  art  of  writing ;  and 

3.  If  any  instrument  or  paper  written  in  a  language  other  than  Span- 
ish should  be  presented. 

485,  5io. 

510).  ART.  671.  For  each  of  the  cases  of  the  preceding  article,  two 
experts  shall  be  appointed,  without  which  the  proceeding  shall  be  null ; 
but  if  there  should  be  one  expert  only  in  the  place,  he  alone  shall  serve 
as  interpreter,  and  the  proceeding  shall  be  valid,  provided  that  the 
impossibility  of  obtaining  two  interpreters  be  stated. 

487,  509  first  par.,  515. 

511).  ART.  672.  In  order  to  be  an  interpreter  it  is  necessary  to  have 
attained  fourteen  years  of  age,  and  have  a  perfect  knowledge  of  the 
Spanish  language,  of  that  of  the  litigants  or  witnesses  not  conversant 
with  the  latter,  and  of  that  in  which  the  document  to  be  translated  may 
be  written. 

428,  432,  513. 

512).  ART.  673.  The  interpreter,  on  accepting  the  office,  shall  promise 
under  oath:  i.  To  transmit  to  the  litigants  or  witness,  faithfully,  in  his 
respective  language,  the  words  of  the  Judge,  and  to  the  latter  the  ans- 
wers of  the  former  in  the  Spanish  language;  and  2.  To  faithfully  per- 
form the  duties  of  his  office  if  acts  other  than  those  mentioned  in  the 
preceding  number  may  be  involved. 

513).  ART.  674.  The  interpreter  may  be  challenged  by  any  of  the 


93 

litigants  for  the  same  causes  and  in  the  form  in  which  witnesses  and 
experts  may  be  challenged.  The  ruling  of  the  Judge  allowing  or  dis- 
allowing the  challenge  of  the  interpreter,  cannot  be  appealed  from. 

502,  428,  429,  430,  511,  768,  1465. 

514).  ART.  675.  An  expert  or  interpreter  who  shall,  without  just 
cause,  refuse  to  discharge  the  trust  confided  to  him,  or  to  express  his 
opinion,  shall  be  compelled  to  do  so  by  means  of  fines,  in  the  same 
manner  as  witnesses,  being  subject  to  the  same  liability  as  the  latter 
for  their  failure  to  obey  the  Judge. 

515).  ART.  676.  In  places  where  there  are  official  interpreters,  the 
latter  shall  be  preferred  by  the  Judges.  Others  shall  be  appointed,  as 
prescribed,  when  such  interpreters  are  prevented  from  appearing  or 
cannot  be  found,  if  the  matter  be  of  an  urgent  character. 

510- 

CHAPTER  VII. 

Public  or  Authentic  Instruments. 

516).  ART.  677.  A  public  instrument  is  that  executed  before  a  notary  , 

and  filed  in  the  respective  protocol. 

523.     2577,  1758  of  the  Civil  Code. 

517).  ART.  678.  Authentic  documents  are:  i.  Those  issued  by  offi- 
cials who  occupy  an  office  by  public  authority,  in  the  exercise  of  their 
functions;  2.  Documents,  books  of  minutes,  by-laws,  registers  and  tax 
lists  on  file  in  the  public  archives  of  an  official  character,  and  the  copies 
authorized  by  the  respective  secretaries  or  officials;  3.  The  certificates 
of  births,  marriages  and  deaths,  issued  in  accordance  with  the  entries 
upon  the  respective  books,  by  those  having  charge  of  the  register  of  the 
civil  status;  and  4.  Judicial  proceedings  of  all  kinds,  and  final  judg- 
ments (ejecutorias)  and  communications  issued  in  legal  form. 

525.     1758  of  the  Civil  Code. 

518).  ART.  679.  In  order  that  the  authentic  documents  mentioned 
may  be  considered  as  proof  in  the  judgment  which  was  preceded  by  a  pro- 
batory  term,  it  shall  be  necessary :  .1 .  That  the  documents  adduced  in 
the  suit  without  citation,  be  compared  with  their  originals,  after  cita- 
tion, unless  the  person  prejudiced  thereby  shall  have  assented  to  said 
documents,  which  assent  must  be  express,  if  documents  are  in  question 
whose  originals  are  not  signed  by  said  person,  and  implied  only,  in 
accordance  with  article  694,*  if  they  should  bear  his  signature;  2.  That 

*  Ordinal  533. 


94 

the  documents  to  be  obtained  by  the  parties  during  the  suit,  be  re- 
quested by  the  Judge  of  the  cause  of  the  respective  office,  after  citation 
of  the  party  against  whom  they  are  to  be  brought;  and  3.  That  if  the 
certified  copy  requested  should  be  a  part  of  a  record  or  of  a  document 
only,  there  be  added  thereto  that  which  the  opposite  party  may  indi- 
cate, if  it  should  bear  relation  thereto  or  be  pertinent.* 

525,  5i9,  374- 


THIRTEENTH  AMENDMENT. 
(Of  Law  460}  1876.) 

519).  ART.  680.  When  an  official  holding  an  office  under  public 
authority,  shall  issue  a  document  of  which  there  is  no  original  in  the 
respective  office,  he  shall  retain  a  copy  of  the  document  issued  in  his 
office,  in  order  that,  if  it  should  become  necessary,  it  may  be  compared , 
in  accordance  with  the  provisions  of  article  679  f  of  the  Judicial  Code. 

If  for  any  cause  the  copy  should  not  be  found,  the  documents,  papers 
or  antecedents  which  the  person  issuing  the  certificates  had  before  him 
in  so  doing,  shall  be  examined,  in  order  that  the  exactness  of  such  cer- 
tificate may  be  established;  and  if  it  should  also  be  impossible  to  find 
such  antecedents,  the  Judge  shall  give  the  certificate  the  weight  of 
evidence  according  to  the  general  provisions  regarding  evidence,  and 
that  most  in  accord  with  the  principles  of  equity. 

Authentic  documents  shall  be  compared  only  when  the  party  oppos- 
ing that  presenting  them,  shall  charge  that  they  are  false. 

382. 

520).  ART.  68 1.  Public  instruments  always,  and  authentic  docu- 
ments when  obtained  in  the  manner  already  stated,  are  full  proof  as  to 
the  contents  thereof. 

1 759»  i 765  of  the  Civil  Code. 

*  Although  public  instruments  are  authentic  documents,  in  accordance  with  the 
Civil  Code,  as  ordinal  articles  516  and  517  make  a  distinction  between  instruments 
and  authentic  documents,  the  provisions  of  No.  i  of  this  article  regarding  the  latter 
are  not  applicable  to  the  former.  Instruments  are  subject  to  the  provisions  of 
ordinal  article  374,  if  a  copy  be  requested  during  the  probatory  term,  or  to  the  form- 
ality of  reference,  in  accordance  with  ordinal  article  545,  if  a  certified  copy 
thereof  be  presented  during  the  probatory  term.  No.  3  of  the  article  annotated  is 
in  agreement  with  ordinal  article  524. 

t  Ordinal  518. 


95 

TENTH  AMENDMENT. 

(Of  Law  53  of  1882.) 

521).  ART.  682.  The  evidence  of  witnesses  is  not  admissible  to  estab- 
lish facts  which  should  appear  in  documents  or  written  evidence  pre- 
established  by  the  laws,  as  for  example,  the  fact  of  a  person  being  or 
having  been  a  public  employee;  the  judicial  or  administrative  acts  of 
which  there  should  be  a  record  in  the  offices,  and  in  general,  any  fact 
with  regard  to  which  the  law  prescribes  that  a  written  record  be  kept. 

32.     1767,    1760   of   the   Civil   Code   and   citations.      See  also 
articles  91  to  93  of  Law  153  of  1887.     Other  pertinent  articles 
of  the  latter  law  appear  also  in  the  citations  to  article  1760  of 
the  Civil  Code. 

ELEVENTH  AMENDMENT. 
(Of  Law  53  o/  1882.) 

522).  ART.  683.  In  case  it  be  proved  that  the  archives  or  original 
documents  in  which  the  facts  referred  to  in  the  preceding  article  should 
appear,  have  disappeared,  the  person  interested  must  have  recourse  to 
those  documents  which  may  replace  those  lost,  or  make  it  probable  that 
they  existed,  and  in  such  case,  the  testimony  of  witnesses  shall  be 
admitted  for  the  purpose  of  completing  the  evidence.  The  evidence  of 
witnesses  is  also  admissible  in  the  absolute  absence,  properly  proved, 
of  the  pre-established  and  written  proof;  the  proof  must  be  directed  to 
establish  the  motives  for  which  such  proofs  have  disappeared. 

The  provision  of  this  article  does  not  affect  the  special  provisions  in 
accordance  with  which  written  evidence  is  required  to  the  exclusion 
of  all  other. 

523).  ART.  684.  A  public  instrument  shall  be  presented  in  the  form 
of  an  authentic  copy,  as  the  register  or  protocol  of  the  Notary  must  not 
leave  the  Notarial  office.  If  the  register  or  protocol  should  not  exist 
an.d  there  should  be  in  the  place  of  the  action  a  person  who  possesses  an 
authentic  copy  of  the  instrument  desired,  the  party  interested  may 
demand  that  the  holder  thereof  present  said  authentic  copy  to  the 
Court,  in  order  that  a  second  copy  may  be  made  and  attached  to  the 
record. 

522. 

524).  ART.  685.  If  the  public  instrument  to  be  presented  as  evidence 
should  be  of  interest  to  a  number,  or  should  consist  of  a  number  of  parts, 
such  as  testaments,  instruments  of  partition,  and  other  similar  docu- 


96 

ments,  it  is  not  necessary  that  a  full  copy  thereof  be  made.  It  shall  be 
sufficient  that  such  part  as  may  be  necessary  to  establish  the  intention 
of  the  person  interested  be  copied,  unless  the  opposite  party  should 
charge  that  it  is  false  or  null,  or  charges  some  other  defect  which  affects 
the  instrument  in  general,  in  which  case  it  must  be  submitted  in  full. 
525).  ART.  686.  Authentic  documents  shall  be  issued  in  the  form  of 
copies  authenticated,  under  the  liability  of  the  officials  charged  with 
the  custody  of  the  originals,  and  the  intervention  of  the  persons  inter- 
ested shall  be  confined  to  an  indication  of  what  is  to  be  certified  to  or 
an  authentic  copy  made  of. 

522. 

526).  ART.  687.  When  an  instrument  shall  be  presented,  authenti- 
cated by  an  unknown  notary,  if  the  opposite  party  of  that  presenting  it 
should  object  thereto  charging  its  falsity,  denying  the  character  of  a 
notary  on  the  part  of  the  person  who  appears  to  have  authorized  it,  the 
person  exhibiting  the  instrument  shall  be  obliged  to  prove  that  at  the 
time  and  place  to  which  it  refers,  the  person  who  authorized  it  as  a 
Notary  held  such  office. 

527,  528. 

527).  ART.  688.  If  the  instrument  should  be  objected  to  as  false, 
because  the  signature  of  the  Notary  who  authenticated  it  is  different 
from  that  which  he  himself  has  affixed  to  other  instruments,  and  this 
difference  should  be  proved  by  experts,  the  falsity  of  the  instrument 
must  not  for  this  reason  alone  be  declared,  but  the  Judge,  if  not  able  to 
obtain  the  declaration  of  the  Notary  himself,  must  enlighten  himself 
with  all  the  data  furnished  him  from  the  record  and  which  he  may  be 
able  to  obtain,  and  decide,  consequently,  as  to  the  falsity  or  authen- 
ticity of  the  instrument,  according  to  what  he  may  find  most  in  accord- 
ance with  the  truth. 

526,  528,  382,  444,  445. 

528).  ART.  689.  If  the  Notary  whose  name  appears  signed  to  an 
instrument  shall  declare  that  he  did  not  authenticate  it,  such  instru- 
ment shall  have  no  force  as  proof,  if  he  should  in  addition  give  satisfac- 
tory explanations  as  to  its  existence  in  the  protocol. 

526,  527,  444,  445. 

529).  The  substantive  law  shall  determine  the  form  and  the  cases  in 
which  public  instruments  are  to  be  drawn. 

2576  to  2609  of  the  Civil  Code,  and  citations  to  the  last  article . 


97 

CHAPTER  VIII. 
Private  Documents. 

530).  ART.  691.  Promissory  notes,  receipts  or  simple  I.  O.  U's,  obliga- 
tions or  other  private  documents  of  this  character,  have  the  force  of  a 
judicial  confession  with  regard  to  their  contents,  provided  they  be 
acknowledged,  before  a  Judge  of  competent  jurisdiction,  by  the  person 
who  signed  them. 

385,  533,  535,  539,  542,  544,  540. 

531).  ART.  692.  In  addition,  with  regard  to  the  documents  mentioned 
in  the  preceding  article,  the  provisions  of  the  substantive  civil  law  shall 
be  observed,  and  with  regard  to  bills  of  exchange  and  other  commercial 
paper,  the  provisions  of  the  Code  of  Commerce. 

1761  to  1766  of  the  Civil  Code.     91,  92,  and  93  of  Law  153  of  1887. 

532).  ART.  693.  The  acknowledgment  that  one  of  the  parties  may 
make  in  court,  during  the  probatory  term,  as  to  the  contents  of  letters 
and  other  papers,  shall  have  the  same  force  as  a  confession. 

385,391- 

533).  ART.  694.  A  document  shall  be  considered  as  acknowledged 
when  having  been  a  part  of  the  papers  in  the  suit  with  the  knowledge 
of  the  party  who  signed  it  or  of  his  agent,  it  shall  not  have  been  objected 
to  or  challenged  as  false  in  due  time,  in  order  that  the  party  presenting 
it  could  have  proved  its  legitimacy. 

542,  544,  547,  559,  551,  965.    • 

534).  ART.  695.  In  general,  the  originals  of  private  documents  must 
be  presented  in  order  that  they  may  have  the  value  which  is  given  them 
in  this  chapter;  but  the  copies  of  such  documents  shall  have  the  same 
value  in  the  following  cases : 

1.  When  the  copy  shall  have  been  made  and  authenticated  by  the 
Notary  before  the  institution  of  the  suit,  by  reason  of  the  immediate 
absence  of  the  person  possessing  the  original,  or  other  equally  justifiable 
considerations,  unless  the  party  against  whom  said  copy  may  be  pre- 
sented shall  maintain  that  it  is  not  a  faithful  one,  and  his  reasons  should 
at  least  permit  of  strong  conjectures  in  favor  of  his  assertion. 

2.  When  the  party  against  whom  said  copy  is  presented  shall  acknow- 
ledge it  as  genuine,  either  in  an  express  manner  or  in  the  implied  manner 
referred  to  in  the  preceding  article,  provided  that  said  copy  be  not  of  a 


document  signed  by  a  person  other  than  that  against  whom  it  is  pro- 
duced, in  which  case  the  acknowledgment  of  the  latter  must  be  express. 
535).  ART.  696.  Every  pefson  is  obliged  to  acknowledge  under  oath 
before  the  Judge  of  competent  jurisdiction,  the  I.  O.  U.,  promissory  note 
or  document  which  he  may  have  signed  in  favor  of  another.  He  who  by 
reason  of  not  being  able  to  write  should  have  directed  that  another  sign 
for  him,  is  obliged  to  testify  as  to  whether  the  document  was  drawn  at 
his  direction,  whether  he  requested  another  to  sign  for  him,  and  whether 
the  contents  of  the  document  are  true.  In  other  cases,  it  shall  be  suffi- 
cient that  he  who  is  obliged  to  make  the  acknowledgment  confess  that 
the  signature  is  his. 

540- 

536).  ART.  697.  The  person  in  whose  favor  the  promissory  note,  bill, 
etc.,  may  have  been  drawn,  or  the  person  to  whom  he  may  have  en- 
dorsed or  assigned  it,  may  request  the  acknowledgment  thereof.  The 
holder  of  a  note  payable  to  bearer,  or  one  which  does  not  state  the  per- 
son to  whom  it  is  to  be  paid,  may  also  request  the  acknowledgment  in 
court. 

537).  ART.  698.  The  Judge  to  whom  application  may  be  made  for  the 
acknowledgment  of  any  of  the  documents  mentioned,  must  summon  the 
person  who  signed  or  ordered  it  signed,  to  acknowledge  it  under  oath, 
fixing  for  the  purpose  the  day  and  hour  when  he  is  to  do  so. 

539 

538).  ART.  699.  The  acknowledgment  having  been  made,  the  Judge 
must  order  that  the  document,  together  with  the  statement,  be  delivered 
to  the  person  who  requested  the  acknowledgment,  in  order  that  he  may 
avail  himself  of  his  right,  if  the  document  did  not  form  part  of  the 
records  of  a  suit. 

539).  ART.  700.  When  a  person  having  been  called  upon  by  a  Judge 
of  competent  jurisdiction  and  personally  cited  to  acknowledge  a  docu- 
ment, or  to  testify  upon  the  obligation  the  subject-matter  of  the  docu- 
ment, should  conceal  himself  or  not  appear  in  court  on  the  day  and  at 
the  hour  which  may  have  been  set,  not  being  prevented  from  so  doin.u 
by  any  impediment  which  would  suspend  the  terms ;  or  if,  appearing  in 
court,  he  should  refuse,  either  to  take  the  oath  or  to  testify  acknowledg- 
ing the  document  or  not,  or  as  to  the  obligation  regarding  which  he  ma\ 
be  questioned ;  or  if  he  should  endeavor  to  elude  the  questions  by  eva- 
sive, irrelevant,  or  senseless  answers,  the  Judge  shall  consider  him  to 
have  confessed  that  upon  which  he  may  have  respectively  been  ques- 
tioned, as  to  which  the  proper  record  shall  be  made,  as  if  the  express 
acknowledgment  had  been  made. 

530,  540. 


99 

540).  ART.  701.  The  national  judge  of  first  .instance  of  the  residence 
of  the  person  who  signed  or  directed  the  signature  of  the  document,  or 
who  shall  in  any  other  manner  appear  responsible  for  the  value  thereof, 
is  of  competent  jurisdiction  for  the  purposes  of  the  preceding  article. 

541).  ART.  702.  A  private  document  entailing  an  obligation,  which 
has  not  been  judicially  acknowledged,  has  only  the  force  of  a  summary 
testimony  of  witnesses. 

448,  449,  542. 

542).  ART.  703.  When  the  documents  mentioned  in  the  preceding 
article  should  be  authorized  by  two  witnesses,  if  the  latter  should  testify 
in  the  ordinary  form  that  they  saw  the  person  against  whom  the  docu- 
ment is  adduced,  sign  it,  or  that  he  requested  them  to  sign  it  as  witnesses, 
having  seen  at  the  time  of  so  doing  the  signature  of  the  party,  the  con- 
tents thereof  shall  be  full  proof. 

543).  ART.  704.  The  originals  of  the  private  documents  and  the  cor- 
respondence in  a  suit  must  be  attached  to  the  record,  if  this  should  be 
possible.  If  certified  copies  thereof  are  to  be  made,  they  shall  be  exhib- 
ited to  the  Secretary  of  the  cause,  and  the  latter  shall  make  a  certified 
copy  of  what  the  persons  interested  or  the  Judge  may  indicate. 

544).  ART.  705.  A  private  document  of  obligation,  registered  at  the 
request  of  the  person  obligated,  upon  the  register  of  public  instruments, 
has  the  force  of  full  proof,  even  though  it  should  not  be  acknowledged  by 
said  person. 

Art.  i  of  Law  39  of  1890,  and  art.  36  of  Law  57  of  1887. 

CHAPTER  IX. 
Provisions  common  to  the  two  preceding  Chapters. 

FOURTEENTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

545).  ART.  706.  The  instruments  and  the  documents  presented  by 
the  parties,  which  may  have  been  embodied  in  the  records,  shall  be  con- 
sidered as  evidence  adduced  during  the  suit,  without  the  necessity  of 
reproduction  nor  reference  during  the  probatory  term. 

19,  840,  841,  859,  860. 

FIFTEENTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

546).  ART.  707.  The  superior  or  inferior  courts  of  the  Union,  when  in 
matters  of  their  jurisdiction  they  may  be  obliged  to  pass  upon  the  value 
of  acts  or  contracts  celebrated  in  the  States,  to  the  laws  of  which  they 


100 

should  have  conformed,  shall  do  so  by  applying  such  laws  if  they  should 
be  presented  as  evidence.  In  the  absence  of  objection  and  proof  against 
the  acts  and  contracts  referred  to,  their  existence  shall  be  established 
by  the  merit  and  nature  of  the  instrument  embodying  them,  if  it  should 
be  presented. 

370  subdivision  9. 

547).  ART.  708.  Public  or  private  documents  drafted  in  accordance 
with  the  laws  of  the  States,  shall  have  probatory  value  assigned  them  in 
Chapters  7  and  8,  title  2,  book  2  of  the  Judicial  Code,  provided  that  no 
proof  be  adduced  thereagainst  of  their  falsity,  nullity  or  the  lack  of  some 
requisite  or  formality  necessary  for  their  validity  or  to  make  the  obliga- 
tion expressed  therein  binding.  In  the  latter  case,  the  probatory  merit 
of  the  instrument  or  document  shall  be  qualified  in  accordance  with  the 
provisions  of  the  law  of  the  respective  State,  if  it  should  be  presented  as 
proof. 

379  subdivision  9,  553. 

548).  ART.  709.  When  a  party  shall  present  two  instruments  or  docu- 
ments of  the  same  class,  which  are  in  conflict  with  each  other,  both  shall 
be  rejected. 

549) .  ART.  710.  Instruments  and  documents  which  are  torn,  amended 
or  in  which  words  are  erased  and  others  put  in  their  place,  in  the  substan- 
tial part  of  their  contents,  shall  not  be  considered  as  proof. 

A  case  is  excepted  in  which  it  may  be  proved  that  the  instrument  or  the 
document  was  altered  without  the  intervention  or  fault  of  the  person 
interested,  as  if  this  should  be  so  and  it  should  not  be  possible  to  replace 
it,  it  must  be  considered  as  evidence  if  the  contents  thereof  can  be  known. 

522.       • 

550).  ART.  711.  Public  or  private  documents  drawn  in  a  foreign 
country,  shall  be  considered  as  proofs  according  to  the  cases,  if  they  be 
presented  authenticated,  as  prescribed  with  regard  to  powers  of  attor- 
ney in  article  337*  of  this  Code. 

551).  ART.  712.  Wheneverby  reason  of  the  signature  or  the  legitimacy 
or  effectiveness  of  a  document  having  been  denied,  the  party  presenting 
it  should  request  a  comparison  of  handwriting,  an  order  shall  be  made 
that  the  document  be  deposited  in  the  office  of  the  Superior  or  inferior 
court,  its  pages  being  rubricated  and  its  condition  certified  to  by  the 
Secretary. 

552).  ART.  713.  The  comparison  shall  always  be  made  with  docu- 

*  Ordinal  104. 


101 

ments  written  or  signed  by  the  person  whose  handwriting  or  signature 
it  is  desired  to  establish. 

553  to  558,  485. 

553).  ART.  714.  If  it  should  be  necessary,  the  documents  which  are 
to  serve  for  the  purpose  of  comparison  may  be  requested  of  any  public 
archives  or  office. 

Those  in  the  possession  of  private  individuals  cannot  be  used  without 
their  consent,  but  if  such  documents  should  be  the  only  ones  in  existence, 
their  production  shall  be  required,  unless  the  possessor  shall  declare 
under  oath,  that  they  contain  secret  matters  which  it  does  not  suit  him 
to  divulge. 

555,641. 

554).  ART.  715.  If  the  denial  or  refusal  to  acknowledge  should  apply 
to  one  part  of  the  document  produced  in  court  only,  that  part  thereof 
which  may  have  been  acknowledged  may  also  serve  as  a  means  of  com- 
parison. 

555).  ART.  716.  When  papers  shall  have  been  requested  and  obtained 
for  the  comparison  which  were  on  file  in  archives  or  other  public  deposi- 
taries, the  Judge  shall  see,  under  his  liability,  that  such  papers  be  re- 
turned promptly  in  their  original  condition. 

553- 

556).  ART.  717.  In  the  absence  or  insufficiency  of  written  papers  with 
which  to  make  the  comparison,  the  Judge  shall  order  that  the  person  to 
whom  the  instrument  which  it  is  desired  to  compare  is  attributed,  write 
what  may  be  dictated  to  him  by  one  of  the  experts  to  the  extent  of  filling 
a  page  of  twenty  lines,  and  affix  his  signature  at  the  foot  of  what  he  may 
have  written. 

557).  ART.  718.  The  experts  who  are  to  make  the  comparison  shall 
promise  not  to  reveal  to  any  person  their  report  before  it  is  presented  to 
the  Judge.  When  the  latter  shall  deem  it  advisable,  he  shall  order  that 
the  comparison  and  report  be  made  in  his  presence  with  entire  secrecy. 

491,  505  second  par.,  507. 

558).  ART.  719.  The  evidence  resulting  from  the  comparison,  is  in- 
complete proof;  but  its  force  shall  be  more  or  less  great  according  to 
the  uniformity  in  the  report  of  the  experts,  the  reputation  of  the  person 
whose  handwriting  or  signature  was  denied,  the  magnitude  or  nature 
of  the  obligation,  and  other  like  circumstances. 

382  and  citations.  ..  „„ 


IO2 

559)-  ART-  720.  At  any  stage  of  the  cause,  up  to  the  citation  for 
judgment,  the  party  against  whom  a  document  may  have  been  pre- 
sented in  a  suit,  may  charge  its  falsity,  in  order  that  it  may  not  be 
considered  in  the  judgment. 

533,  562. 

560).  ART.  721.  If  the  probatory  term  shall  already  have  expired  or 
is  about  to  expire,  an  additional  term  not  to  exceed  ten  days  may  be 
granted,  provided  that  the  party  shall  swear  that  he  did  not  before  have 
knowledge  of  the  falsity. 

The  cause  shall  be  suspended  until  the  issue  charging  the  falsity  may 
be  decided ;  but  if  the  decision  should  be  against  the  party  who  brought 
the  charge,  he  shall  be  adjudged,  in  addition  to  the  costs,  to  the  pay- 
ment of  a  fine  of  from  twenty  to  two  hundred  pesos,  if  his  temerity 
should  be  manifest. 

377,  878,  879. 

561).  ART.  722.  If  in  order  to  prove  the  falsity  the  comparison  of 
handwriting  or  of  signatures  should  be  requested,  the  proceedings  shall 
be  had  as  stated,  and  in  this  case  as  well  as  in  any  other  case  in  which 
experts  may  have  been  appointed  for  the  purpose  of  examining  and 
reporting  upon  the  genuineness  of  a  document,  all  the  data  and  means 
of  examination  and  comparison  which  they  may  consider  necessary, 
shall  be  placed  at  their  disposal  with  the  restriction  established  in 
article  714*  with  respect  to  the  documents  in  the  possession  of  private 
individuals. 

562).  ART.  723.  The  Secretary  shall  rubricate  the  pages  of  the  docu- 
ment challenged  as  false,  immediately  upon  the  falsity  being  charged, 
and  the  Judge  shall  take  the  precautions  necessary  to  prevent  a  sub- 
stitution. 

559- 

563).  ART.  724.  The  decision  rendered  upon  the  issue  of  falsity,  shall 
be  understood  as  without  prejudice  to  the  criminal  action  and  proceed- 
ings which  may  lie  against  the  falsifier. 

564).  ART.  725.  When  the  parties  who  may  have  presented  in  a  suit 
or  in  any  other  manner,  instruments  or  documents  as  evidence,  should 
find  it  necessary  to  use  the  originals  thereof  in  another  suit  or  petition, 
they  shall  be  returned  to  them,  and  an  authentic  copy  shall  be  left  in 
the  process  of  which  they  form  part,  provided  that  the  Judge  shall  not 
consider  that  they  are  also  indispensable  therein  in  the  form  in  wlm-li 
they  were  presented.  The  request  for  the  return  thereof,  shall  be  In  a  id 

*  Ordinal  553. 


103 
i 

and  decided  as  an  incidental  issue,  if  the  suit  should  not  have  been  con- 
cluded. After  the  rendition  of  judgment  in  last  instance,  the  request 
for  the  return  may  be  presented  only  to  the  Judge  of  first  instance. 

In  the  event  that  the  Judge  should  not  find  that  the  return  of  the 
document  should  take  place,  he  shall  order  an  authentic  copy  thereof 
issued,  and  shall  direct  that  the  Secretary  certify  to  any  portion  of  the 
original  which  the  party  may  deem  advisable. 

565).  ART.  726.  If  the  purpose  of  the  party  were  to  cause  the  ac- 
knowledgment in  another  suit  of  a  signature  already  acknowledged  in 
the  first,  he  may  request  a  copy  of  the  act  of  acknowledgment,  together 
with  that  of  the  document. 

The  two  preceding  articles  have  been  supplemented  by  the  two 
following : 

566).  ART.  335  of  Law  105  of  1890.  Justices  and  Judges  may  decree, 
with  the  proper  precautions,  in  order  to  prevent  abuses,  the  removal 
and  delivery  of  original  documents,  when  the  parties  who  presented 
them  may  so  require.  The  request  for  return  shall  be  heard  and  de- 
cided as  an  incidental  issue,  if  the  suit  should  not  have  been  terminated. 
If  it  should  have  been  closed,  the  other  parties  shall  be  heard  before 
deciding  upon  the  petition.  They  shall  cause  that  the  Secretaries 
leave  a  copy  thereof  at  the  cost  of  the  petitioner,  in  the  respective  place 
of  the  record,  and  the  necessary  receipt,  which  shall  be  written  imme- 
diately after  the  copy  of  the  document.  Upon  the  document,  the  removal 
of  which  is  directed,  there  shall  be  copied  the  resolution  which  may  be 
made,  for  which  purpose  the  blank  part  which  the  document  may  have 
shall  be  used,  even  though  the  paper  were  not  of  the  proper  class.  If  an 
appeal  be  taken  from  the  decision,  the  decision  of  the  superior  shall  be 
copied. 

567).  ART.  336  of  Law  105  of  1890.  Documents  establishing  per- 
sonal obligations  which  have  been  satisfied  in  full  by  reason  of  the  suit, 
shall  be  detached  when  the  party  who  presented  them  is  under  the 
obligation  of  returning  them,  or  they  shall  be  delivered  to  the  debtors, 
if  the  latter  should  so  request. 

If  the  entire  value  of  the  document  ordered  returned  shall  not  have 
been  satisfied,  the  Judge,  in  the  order  directing  the  removal,  shall  make 
mention  of  the  amount  which  may  have  been  satisfied. 

CHAPTER  X. 

Ocular  Inspection. 

568).  ART.  727.  The  ocular  inspection  is  the  examination  and  investi- 
gation made  by  the  Judge  in  person  or  through  experts  of  the  litigious 
thing,  in  order  to  be  able  to  decide  with  sound  judgment. 

569).  ART.  728.  The  ocular  inspection  may  be  requested  as  proof: 


104 

1 .  By  the  owner  of  an  estate  whose  lands  may  be  threatened  by  the 
overflow  of  a  river,  by  reason  of  the  waters  naturally  flowing  thereon. 

2.  By  the  person  injured  or  who  might  be  injured  by  a  work  threaten- 
ing to  collapse. 

3.  By  the  person  injured  or  who  might  be  injured  by  a  new  work  con- 
tiguous to  his  tenement. 

4.  By  the  person  who  may  be  caused  loss,  if  thing  exposed  to  cor- 
ruption or  to  suffer  deterioration,  should  not  be  sold. 

5.  By  the  person  who  would  be  prejudiced  if  the  hanging  fruits 
should  not  be  gathered,  and  as  to  which  he  intends  to  bring  a  suit. 

6.  By  the  person  desiring  an  examination  of  the  damage  which  may 
have  been  caused  him,  and  the  value  of  the  indemnity  due  him. 

7.  By  those  desirous  of  the  retention  of  the  waters  which  irrigate 
their  lands,  without  increasing  or  decreasing  the  intake  or  outlet  in  the 
course  of  the  waters. 

8.  By  those  disputing  as  to  limits  and  boundarie    of  places  or  real 
property,  or  as  to  rural  or  urban  servitudes ;  and 

9.  In  all  other  cases  in  which  an  examination  may  be  necessary  to 
decide  the  object  in  controversy. 

570).  ART.  729.  The  inspection  must  also  be  made  by  the  Judge  ex 
proprio  motu,  whenever  he  shall  deem  it  necessary,  for  the  proper  eluci- 
dation of  the  truth ;  and  in  such  case  it  may  be  decreed  at  any  stage  of 
the  cause,  before  final  judgment. 

The  following  article  subrogates  the  preceding  one,  although  not  in  an 
absolute  manner,  as  the  provision  regarding  the  time  when  the  inspec- 
tion may  be  decreed,  subsists. 

571).  ART.  8 1  of  Law  1 05  of  1890.  The  ocular  inspection  must  be  made 
on  the  petition  of  a  party,  or  ex  proprio  motu  by  the  Judge  or  Court  tak- 
ing cognizance  of  the  matter.  If  the  inspection  should  be  requested  by 
the  party  within  the  probatory  term,  it  shall  be  made  by  the  person 
hearing  the  case,  unless  at  the  time  of  requesting  the  evidence,  it  be  ex- 
pressly stated  that  the  inspection  be  made  by  all  the  justices  composing 
the  Chamber  and  who  are  to  decide  the  controversy. 

If  the  ocular  inspection  should  be  decreed  on  his  own  motion  by  t he- 
Judge  or  court,  taking  cognizance  of  the  cause,  whenever  it  shall  be 
deemed  necessary  for  the  proper  elucidation  of  the  truth,  the  Justices 
who  are  to  render  judgment  shall  attend. 

572).  ART.  730.  In  every  case  of  ocular  inspection,  the  Judge,  in 
granting  or  ordering  it,  shall  fix  the  day  and  hour  when  it  is  to  be  made. 

573.)  ART.  731.  The  inspecting  Judge  shall  appoint  two  witnesses 
with  whom  he  must  associate  himself  in  the  act,  if  experts  should  not  U 
necessary;  but  when  the  case  requires  professional  knowledge,  experts 
shall  be  appointed  according  to  the  terms  prescribed  in  Chapter  VI  of 
this  Title,  it  being  necessary  that  the  parties  and  other  persons  inu-rcstc  <1 


105 

be  first  cited,  excepting  the  cases  in  which  express  provisions  to  the  con- 
trary are  specified  in  this  Code. 

The  parties  attending  the  proceeding  may  verbally  make  such  remarks 
to  the  Judge  as  they  may  consider  proper,  and  they  shall  be  inserted  in 
the  minute,  on  the  petition  of  the  party,  if  they  should  be  pertinent. 

505- 

574).  ART.  732.  When  the  Judge  shall  be  in  the  place  where  the  ocular 
inspection  is  to  be  made,  with  the  attendance  of  the  Secretary  and  of  the 
witnesses  or  experts,  in  a  proper  case,  he  shall  hear  the  persons  interested 
and  shall  cause  the  experts  to  examine  the  thing  and  express  their  opin- 
ion with  the  reasons  therefor,  which  opinion  must  be  approved  by  the 
Judge. 

A  record  shall  be  made  of  the  entire  proceeding,  which  shall  be  signed 
by  the  parties  present,  which  shall  form  a  more  or  less  complete  proof, 
according  to  the  nature  of  the  contents  thereof  and  the  character  of  the 
assertions  which  the  experts  or  witnesses  who  may  have  taken  part  in 
the  proceedings  may  have  made. 

575).  ART.  733.  With  regard  to  the  acts  which  may  have  taken  place 
in  the  presence  of  the  Judge,  the  Secretary  and  the  witnesses,  the  record 
of  the  inspection  constitutes  full  proof,  as  does  that  which  is  before  the 
Judge,  in  the  papers  in  the  case  of  which  he  takes  cognizance. 

576).  ART.  734.  The  record  of  the  examination  having  been  made, 
the  Judge  shall  order  that  it  be  attached  to  the  records  if  such  examina- 
tion should  have  been  made  to  settle  a  doubt,  or  that  it  be  delivered  to 
the  person  who  requested  it,  in  order  that  he  may  make  use  of  his  right. 
But  when  the  ocular  inspection  should  involve  a  new  work  or  one  that 
threatens  to  collapse,  the  provisions  of  Chapters  VII  and  VIII,  Title  XI 
of  this  Book,  shall  be  observed. 


CHAPTER  XI. 

Special  proofs  in  Commercial  Affairs. 

377).  ART.  735.  In  addition  to  the  evidence  admissible  in  civil  affairs, 
in  general,  the  following  is  also  admissible  in  commercial  affairs : 

1 .  The  commercial  books  kept  in  accordance  with  the  law  governing 
the  matter. 

2.  The  invoices  or  memoranda  accepted  or  cancelled  by  the  persons 
interested. 

3.  The  usual  cards  or  statements  of  accounts;  and 

4.  Custom  according  to  the  Code  of  Commerce. 

578).  ART.  736.  Commercial  books  acknowledged  by  the  respective 
merchant,  with  the  legal  formalities,  prevail  against  him ;  but  the  oppo- 


io6 

site  party  producing  them  as  evidence,  cannot  accept  the  favorable  por- 
tions and  reject  what  may  be  adverse. 

579).  ART.  737.  Invoices  or  memoranda  are  governed  by  the  rules  of 
private  documents. 

*  530  et  seq. 

580).  ART.  738.  Correlative  cards  agreeing  with  each  other,  are  evi- 
dence between  the  persons  who  customarily  establish  in  this  manner 
what  they  may  issue  or  receive  on  credit. 

581).  ART.  739.  Commercial  custom  must  be  proved  by  any  of  the 
following  means: 

1.  By  three  authentic  decisions  pronounced  in  accordance  with  the 
custom  which  it  is  desired  to  establish ;  and 

2.  By  the  unanimous  statement  of  seven  merchants  presented  by  the 
party  pleading  the  custom. 

582).  ART.  740.  As  a  general  rule,  the  entries  made  by  exchange 
brokers  or  agents  shall  have  the  value  of  the  testimony  of  a  witness ; 
but  when  the  party  against  whom  they  may  appear  should  not  produce 
sufficient  evidence  to  refute  them,  they  shall  have  the  force  of  complete 
proof. 

437-  ~  .*-*.' 


TITLE  III. 

Incidental  Issues  in  Civil  Action. 

CHAPTER  i. 

583).  ART.  741.  After  the  answer  to  the  complaint,  until  the  citation 
for  judgment,  the  parties  may  raise  the  interlocutory  or  incidental 
issues  which  they  may  desire. 

383,  559,  56o,  590. 

SIXTEENTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

584).  ART.  742.  All  incidental  issues  shall  be  heard  and  decided  in  a 
separate  record,  being  referred  to  the  opposite  parties  for  forty-eight 
hours,  and  evidence  thereon  being  taken  for  nine  days  when  there  are 
matters  to  be  proved ;  but  when  the  issue  shall  refer  to  points  already 
decided  in  other  incidental  issues,  the  Judge  shall  declare  it  inadmissible 
within  forty-eight  hours,  and  if  an  appeal  should  be  taken  from  this 
decision,  it  shall  not  be  allowed  excepting  in  a  devolutive  effect. 

318,  364- 

585).  ART.  743.  Answer  having  been  made  to  the  reference,  when 
the  point  is  one  of  pure  law,  or  the  time  having  expired  for  the  taking  of 
evidence  upon  an  incidental  issue,  the  Judge  shall  decide  it  within 
three  days. 

586).  ART.  744.  The  decisions  rendered  by  the  National  judges  in 
incidental  issues,  may  be  appealed  from  to  the  Federal  Supreme  Court, 
in  both  effects,  and  a  copy  of  the  resolution  which  it  may  render  shall 
be  added  to  the  principal  record  in  order  that  it  may  have  its  effects ; 
if  the  appeal  shall  not  be  interposed,  a  copy  of  the  decision  of  the  Judge 
shall  be  attached  thereto. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated 
by  the  following : 

587).  ART.  82  of  Law  105  of  1890.  The  decision  upon  an  incidental 
issue  is  appealable  only  in  a  devolutive  effect,  and  if  by  said  decision 
the  proceedings  had,  or  a  part  thereof,  should  be  invalidated,  mention 
shall  be  made,  in  the  record  of  the  principal  suit,  of  the  decision  con- 
taining such  provision. 

780. 


io8 

588).  ART.  745.  The  appeal  must  be  interposed  immediately  upon 
service  of  notice  or  within  the  next  twenty-four  hours.  Upon  being 
allowed,  the  papers  relating  to  the  incidental  issue  shall  be  sent  to  the 
Court,  a  copy  of  the  decision  of  the  Judge  being  retained.  If  the  Court 
should  deem  another  part  of  the  record  necessary  before  deciding,  it 
may  call  for  such  part. 

766,  769. 

589).  ART.  746.  The  court  shall  render  decision  in  these  cases  as  in 
appeals  from  interlocutory  decisions. 

783  to  787. 

590).  ART.  747.  The  introduction  and  the  hearing  and  determina- 
tion of  an  incidental  issue  does  not  interrupt  any  of  the  terms  of  the 
suit,  unless  the  result  thereof  may  have  an  influence  upon  the  decision, 
in  which  event  the  term  allowed  the  Judge  for  rendering  final  judgment 
shall  not  begin  to  be  counted  until  the  incidental  issue  shall  have  been 
decided. 

583- 

CHAPTER  II. 
Impediments  and  Recusations. 

591).  ART.  748.  No  justice  or  judge  can  take  cognizance  of  a  matter 
which  he  may  be  prevented  from  doing  according  to  the  following 
article,  unless  it  shall  appear  that  the  jurisdiction  has  been  prorogued 
to  him  in  an  express  or  implied  manner. 

598,  599,  600,  60 1. 

592).  ART.  749.*  The  following  are  causes  of  impediment: 

1 .  Relationship  by  consanguinity,  within  the  fourth  degree,  between 
the  Judge  and  any  of  the  parties. 

2.  Relationship  by  affinity,  within  the  second  degree,  between  the 
same. 

3.  Intimate  friendship,  or  grave  enmity,  between  the  Judge  and  any 
of  the  parties. 

4.  An  interest  in  the  suit  on  the  part  of  the  Judge  or  any  of  his  rela- 
tives in  the  degrees  mentioned  in  the  first  two  paragraphs. 

5.  The  fact  of  the  superior  Judge  being  a  relative,  within  the  third 
degree  of  consanguinity,  of  the  inferior  judge  whose  decisions  the  fonm -i 
may  have  to  review  by  virtue  of  any  remedy. 


*  Amended:  Ordinal  593. 


109 

6.  The  fact  of  the  Superior  Judge  being  a    relative,   within  the 
second  degree  of  affinity,  of  the  inferior  judge  situated  as  in   the 
preceding  number. 

7.  The  fact  of  the  Judge,  his  wife  or  his  son,  having  adopted  or  having 
been  adopted  by  any  of  the  parties. 

8.  The  fact  of  the  Judge  being  a  partner  or  participant  in  anything 
with  any  of  the  parties. 

9.  The  fact  of  the  superior  judge  having  taken  cognizance  at  first 
instance  of  the  same  suit,  and  rendered  the  decision  which  he  may  be 
obliged  to  review  in  the  second  instance. 

10.  If  the  Judge  live  in  the  house  of  any  of  the  parties,  or  eat  at  the 
table  and  at  the  expense  of  said  party. 

11.  If  the  Judge  should  be  the  actual  tutor  or  curator  of  any  of  the 
parties,  or  an  administrator  having  an  interest  in  the  suit,  or  if  the 
parents,  children  or  brothers  of  the  Judge  should  so  be. 

12.  If  the  Judge  or  his  parents,  or  his  wife,  or  any  of  his  children 
should  be  the  creditor  or  debtor  of  any  of  the  parties. 

620. 

13.  If  the  Judge,  his  wife,  either  of  his  parents  or  any  of  his  children, 
should  have  received  donations  or  valuable  services  from  any  of  the 
parties,  after  the  institution  of  the  suit ;  if  they  should  have  been  ap 
pointed  the  heirs  of  any  of  the  parties  or  have  left  them  anything  in 
a  testament. 

14.  If  any  of  the  parties,  his  spouse,  or  any  of  his  children  should  be 
dependent  upon  the  Judge. 

15.  If  the  Judge,  his  wife,  either  of  his  parents  or  of  his  children, 
shall  have  suffered  offenses  at  the  hands  of  any  of  the  parties,  partaking 
of  the  nature  of  a  crime,  and  which  were  made  the  subject  of  proceed- 
ings and  a  verdict  of  conviction  rendered,  unless  three  years  shall  have 
elapsed  since  such  sentence. 

1 6.  If  any  of  the  parties  be  in  civil  litigation  with  the  Judge,  his  wife, 
his  ascendants,  descendants  or  brothers,  or  should  have  been  in  litiga- 
tion without  a  compromise  having  been  reached,  within  the  six  months 
next  preceding  the  day  the  impediment  is  adduced. 

17.  If  the  Judge,  his  wife,  his  parents,  children  or  brothers,  shall  have 
a  suit  pending  of  which  any  of  the  parties  may  be  taking  cognizance 
as  Judge ;  and 

1 8.  If  the  Judge  shall  have  favored  any  of  the  parties  in  the  subject- 
matter  of  the  suit,  or  in  the  suit  itself  as  attorney  or  counsel  (patrono). 

60 1,  602. 

No.  3  of  the  preceding  article  has  been  amended  by  the  following  article : 
593).  ART.  84  of  L,aw  105  of  1890.     Intimate  friendship  between  the 


I  IO 

Judge  and  any  of  the  parties,  or  enmity  between  the  Judge  and  the  coun- 
sel or  attorneys  of  the  parties,  is  not  a  cause  of  impediment. 

594- 

594).  ART.  750.  What  is  said  of  the  parties  with  regard  to  impediment 
and  recusations,  is  understood  also  to  apply  to  their  attorneys  and  de- 
fenders of  property. 

106,  132,  593.     Law  169  of  1896,  art.  14. 

595).  ART.  751.  When  the  recusation  is  based  on  any  cause  which 
refers  to  one  of  the  parties  only,  the  right  to  recuse,  excepting  in  cases  of 
enmity  or  a  pending  suit,  pertains  only  to  the  party  opposed  to  that  to 
which  the  cause  refers. 

The  following  article  is  supplemental : 

596).  ART.  83  of  Law  105  of  1890.  The  Justice  or  Judge  recused  in 
an  incidental  issue  of  the  suit,  is  prevented  from  taking  cognizance  until 
the  end  of  said  suit,  without  the  necessity  of  a  new  recusation,  as  long 
as  the  impediment  shall  exist. 

597).  ART.  752.*  The  Justice  or  Judge  in  whom  any  of  the  impedi- 
ments mentioned  may  be  present,  shall  inform  the  party  interested  in 
knowing  thereof  by  means  of  a  decision  (auto)  and  should  he  not  do  so 
within  two  days,  knowing  thereof,  or  if  even  after  having  done  so  he 
should  continue  taking  cognizance  of  the  matter,  without  the  jurisdic- 
tion having  been  prorogued  to  him,  he  shall  incur  the  penalty  established 
in  article  432  of  the  Penal  Code. 

592,  601,  603,  607. 

598).  ART.  753.  If  the  party  directly  interested  in  the  removal  of  the 
Judge  shall  state  at  the  time  of  service  of  notice,  or  within  twenty-four 
hours  thereafter,  that  he  does  not  agree  to  said  Judge  continuing  to  take 
cognizance  of  the  cause,  the  Judge  shall  by  such  act  be  separated  there- 
from, and  the  matter  shall  pass  to  the  official  called  upon  to  substitute 
him,  provided  that  the  opposing  party  shall  not  have  objected,  as  he  may 
do,  basing  his  opposition  upon  the  inexactness  of  the  facts  which  consti- 
tute the  impediment  pleaded,  or  upon  such  impediment  not  being  any  of 
those  mentioned  in  article  749.!  If  the  party  directly  interested  in  the 
removal  of  the  Judge,  or  Justice  prevented,  shall  state  in  the  notice  that 
he  agrees  to  said  justice  or  judge  taking  cognizance  of  the  matter,  or 
should  keep  silence  when  said  service  is  made  and  for  twenty-four  hours 

*  Amended  by  ordinal  No.  601.  Art.  432  of  the  Penal  Code  which  was  in  Force 
and  to  which  reference  is  made  herein,  is  art.  543  of  the  Penal  Code  <>!  Colombia,  now 
in  force. 

t  Ordinal  592. 


Ill 

thereafter,  the  justice  or  judge  prevented  shall  continue  taking  cogniz- 
ance by  virtue  of  the  prorogation  of  the  jurisdiction. 

600,  608,  609,  6 10. 

The  following  articles  are  amendatory : 

599).  ART.  32  of  Law  100  of  1892.  The  causes  of  impediment  men- 
tioned in  Nos.  i,  2  and  4,  of  article  749  of  the  Judicial  Code,  shall  not  be 
understood  to  be  cured  by  the  silence  of  the  party,  in  the  term  indicated 
in  article  753  of  the  said  Code.  Such  causes  can  be  cured  only  by  the 
express  will  of  the  party  having  such  right.* 

600).  ART.  33  of  Law  100  of  1892.  Impediments  which  consist  in  the 
Judge  or  Justice,  or  his  wife,  parents  or  children,  being  parties  to  the  suit, 
can  in  no  case  be  cured. 

598. 

601).  ART.  85  of  Law  105  of  1890.  Justices  and  Judges  shall  not 
inform  the  parties  of  the  impediments  which  follow,  established  by  the 
Judicial  Code : 

1.  That  treated  of  in  No.  12,  with  regard  to  the  parents,  wife  or  chil- 
dren of  the  Judge,  if  the  fact  which  serves  as  a  basis  for  the  impediment 
shall  have  taken  place  after  the  initiation  of  the  suit  and  without  the 
intervention  of  the  person  of  the  Judge,  and  provided  that  the  latter  shall 
already  have  been  exercising  the  functions  of  the  judicature  when  the 
act  took  place. 

2.  Impediment  No.  13,  in  the  part  relating  to  the  institution  of  heir 
or  legatee  of  any  of  the  persons  designated  in  the  said  number,  when  such 
institution  shall  appear  in  the  testament  of  a  person  who  has  not  died 
yet,  or  if,  even  if  he  should  have  died,  the  inheritance  or  legacy  has  been 
or  is  repudiated. 

3.  Impediment  No.  16,  when  the  suit  referred  to  therein  shall  have 
been  instituted  after  the  suit  relating  to  the  impediment.     Nevertheless, 
if  the  Judge  sued  shall  have  assented  to  the  facts  which  are  the  grounds 
of  the  complaint,  or  if,  the  action  being  an  executory  one,  the  writ  of 
execution  shall  have  become  final  (executed  ?) ,  the  Judge  must  make  the 
impediment  known. 

597,  602,  607. 

602).  ART.  86  of  Law  105  of  1890.  The  parties  cannot  recuse  the 
justices  or  judges  for  the  impediments  referred  to  in  the  preceding  article 
when  the  circumstances  established  in  the  said  article  shall  be  attendant. 

603) .  ART.  754.  Even  though  the  Judge  or  Justice  shall  not  have  made 
known  any  cause  of  impediment,  the  party  directly  interested  in  his 


Art.  14  of  Law  169  of  1896,  is  amendatory. 


112 

removal  may  recuse  him,  provided  any  of  said  causes  shall  be  attendant, 
and  provided  he  do  so  not  later  than  twenty-four  hours  after  the  citation 
for  final  judgment  shall  have  issued. 

593,  597,  601,  602. 

604).  ART.  755.  The  plea  of  recusation  must  be  in  writing,  and  must 
be  conceived  in  terms  of  moderation  and  not  offensive  to  the  person 
recused,  it  being  necessary  that  the  cause  of  impediment  be  expressed 
very  clearly  and  individually.  It  shall  be  addressed  to  the  Court  or 
Judge  who  may  have  to  take  cognizance  of  the  issue,  according  to  the 
following  article. 

607,  61 1. 

605).  ART.  756.  The  incidental  issue  upon  the  impediment  or  recusa- 
tion shall  be  taken  cognizance  of  in  the  Federal  Supreme  Court  by  the 
Justices  not  impeded  and  not  recused,  and  in  the  courts  of  first  instance, 
by  the  Judge  who  may  have  to  take  cognizance  of  the  matter,  if  the 
existence  of  the  cause  alleged  should  be  declared.  If  the  court  of  first 
instance  should  be  a  plural  one,  the  impediment  of  recusation  of  one  of 
the  Judges  or  Justices  thereof  shall  be  taken  cognizance  of  by  the  Judge 
or  judges  to  whom  the  cognizance  of  the  principal  matter  may  fall,  in  the 
event  that  the  Justice  or  Judge  prevented  should  be  separated. 

Supplemented  by  the  following  article : 

606).  ART.  2  of  Law  72  of  1890.  In  matters  of  which  the  Superior 
District  Courts  take  cognizance  in  "Sala  de  Acuerdo,"  the  Justices  not 
prevented  or  recused  shall  take  cognizance  of  the  impediment  or  recusa- 
tion of  a  justice. 

In  those  which  are  decided  in  a  Chamber  of  two  or  more  Justices,  the 
impediment  or  recusation  of  one  of  them  shall  be  heard  and  determined 
by  the  others  composing  the  Chamber. 

In  those  decided  by  a  single  Justice,  the  one  following  him  in  turn 
shall  pass  upon  the  impediment  or  recusation. 

When  a  Tribunal  shall  be  divided  into  two  chambers,  and  in  either  of 
them  justices  who  are  to  decide  upon  the  impediments  or  recusations 
should  be  lacking,  the  justice  or  justices  lacking  shall  be  called  from  t lie- 
other  chamber,  being  selected  by  lot. 

In  the  absence  of  justices,  co-judges  shall  be  drawn. 

637).  ART.  757.  The  Justices  or  Judges  to  whom  the  cognizance  of  the 
incident  of  impediment  or  recusation  falls  are  not  impeded  nor  subject 
to  recusation  therein. 

597,601. 


H3 

608).  ART.  758.  The  impediment  having  been  made  known  by  the 
Judge  or  Justice  in  whom  it  may  be  present,  and  the  separation  of  the 
latter  having  been  assented  to  by  the  person  interested  therein,  without 
opposition  from  the  other  party,  the  Judge  or  the  Justices  to  whom  the 
cognizance  of  the  incident  may  fall  shall  declare  the  Justice  or  Judge 
impeded  to  be  separated,  and  shall  assume  the  cognizance  of  the  prin- 
cipal matter  if  a  Judge  of  First  Instance  were  involved ;  if  a  Justice 
of  the  Court,  a  day  and  hour  shall  be  set  within  the  next  five  for  the  selec- 
tion by  lot  of  the  Co- judge  with  whom  the  Court  is  to  be  completed  for 
continuation  of  the  cognizance  of  the  principal  matter,  after  the  Co- 
judge  shall  have  entered  upon  his  duties  and  the  partiesin  formed  thereof. 

597,  601,  607,  609,  610. 

Supplemented  by  the  following : 

609).  ART.  87  of  Law  105  of  1890.  The  Judges  and  Justices  whose 
duty  it  may  be  to  take  cognizance  of  the  incident  referred  to  in  articles 
758  and  760*  of  the  Judicial  Code,  before  declaring  the  respective  Justice 
or  Judge  to  be  separated,  shall  pass  upon  the  legality  of  the  impediment 
itself,  and  shall  take  into  consideration  whether,  in  accordance  with  the 
law,  the  impediment  should  have  been  made  known  by  the  Judge  or 
pleaded  by  the  parties. 

6 1 o) .  ART.  759.  If  the  party  opposing  that  interested  in  the  separation 
of  the  Justice  or  Judge  impeded  should  object  thereto,  pleading  that  the 
impediment  alleged  is  not  true,  the  incident  shall  be  transmitted  to  the 
Judge  or  to  the  Justices  who  are  to  take  cognizance  thereof,  and  the 
latter  or  the  former  shall  receive  evidence  upon  the  incident  for  the  com- 
mon and  period  of  eight  days,  not  subject  to  extension,  upon  the  expira- 
tion of  which  it  shall  be  decided  within  the  next  three  days  whether  the' 
impediment  is  or  is  not  established,  and  in  the  former  case  the  additional 
proceedings  provided  for  by  the  preceding  article  when  the  Justice  or 
Judge  impeded  is  declared  separated,  shall  be  had.  In  the  latter 
case,  that  is,  when  it  is  decided  that  the  impediment  has  not  been  proved 
the  incident  shall  be  returned  to  the  Justice  or  Judge  who  has  made 
known  his  impediment,  in  order  that  he  may  continue  taking  cognizance 
of  the  principal  matter. 

6 1 1).  ART.  760.  In  case  of  recusation,  the  mode  of  procedure  shall  be 
as  follows:  after  a  consideration  of  the  document  containing  it,  the 
Justices  or  the  Judge  who  are  to  hear  the  incident,  shall  immediately  call 
upon  the  Justice  or  Judge  recused  for  a  report  as  to  the  truth  of  the  state- 
ments upon  which  the  recusation  is  based,  and  upon  the  report  being 
made,  which  must  be  done  within  forty-eight  hours,  if  the  person  recused 
should  admit  the  truth  of  the  facts  mentioned,  he  shall  be  declared  re- 

*  Ordinals  608  and  6 1 1 . 


moved  from  the  cognizance  of  the  principal  matter;  subsequent  pro- 
ceedings shall  be  in  accordance  with  article  758. 

If  the  Magistrate  or  Judge  recused  should  not  admit  the  truth  of  the 
facts  upon  which  the  recusation  is  based,  or  if  the  party  opposed  to  the 
recusing  one  should  deny  the  truth  of  such  facts,  the  provisions  of  article 
759  regarding  the  denial  of  the  truth  of  the  impediment  by.the  party 
opposing  that  interested  in  the  removal  of  the  Justice  or  Judge  who 
pleaded  it,  shall  be  observed. 

612,  609. 

612).  ART.  761.  If  the  recusation  should  not  be  based  upon  any  of  the 
causes  mentioned  in  article  749,  it  shall  be  declared  inadmissible  merely 
upon  an  examination  of  the  document  containing  it. 

601,  602. 

613).  ART.  762.  The  decisions  rendered  by  the  Judges  of  first  instance 
in  incidents  upon  an  impediment  or  recusation,  may  be  appealed  from 
to  the  Federal  Supreme  Court  by  the  party  who  believes  himself  injured, 
but  the  appeal  shall  be  granted  only  in  a  devolutive  effect. 

783  to  787. 

614).  ART.  763.  The  Secretary  of  the  Federal  Supreme  Court  and 
those  of  the  Courts  of  First  Instance,  may  be  recused  for  the  same  causes 
as  Justices  and  Judges,  and,  furthermore,  by  reason  of  notable  delay  in 
the  discharge  of  his  functions. 

592. 

615).  ART.  764.  The  proceedings  for  the  recusation  of  a  Secretary 
shall  be  heard  by  the  Justice  taking  cognizance  of  the  cause.  The  per- 
son recused  shall  take  no  part  in  the  proceedings,  but  the  person  who 
would  replace  him  in  the  event  of  the  recusation  being  allowed,  shall  act. 

6 1 6).  ART.  5  of  Law  72  of  1890.  The  Justice  taking  cognizance  of 
the  cause,  passes  upon  the  impediment  or  recusation  of  the  Secretary  of 
the  Court. 

617).  ART.  765.  The  mode  of  procedure  in  the  recusation  of  a  Secre- 
tary shall  be  similar  to  that  established  for  the  recusation  of  Justices  and 
Judges. 

597,  598,  604,  608  to  6 1 1. 

6 1 8).  ART.  766.  The  provisions  of  this  chapter  regarding  the  recusa- 
tion and  impediment  of  Justices  and  Judges  is  applicable  to  the  Co- 
Judges  of  the  Court  and  to  the  substitutes  of  the  Judges.' 


6 1 9).  ART.  767.  The  Justices  of  the  Federal  Supreme  Court,  when 
they  take  cognizance  in  "Sala  de  acuerdo"  of  matters  not  of  a  conten- 
tious character,  and  Judges  of  First  Instance,  when  they  act  in  matters 
in  which  there  is  no  opposition  by  a  party,  may  also  be  recused  lor  the 
causes  mentioned  in  article  749,  the  causes  regarding  the  person  being 
understood  as  referring  to  those  who  may  be  individually  interested  in 
the  matter. 

The  right  to  recuse  in  these  cases  continues  until  the  Court  or  the 
Judge  shall  have  rendered  the  final  decision  in  the  matter  in  question. 

620) .  ART.  768.  With  regard  to  the  Nation,  a  corporation  or  any  other 
juridical  person,  the  party  opposing  any  of  such  entities  cannot  plead  as  a 
cause  of  recusation,  the  i2th  cause  of  article  749,  nor  those  which  being 
personal,  can  refer  only  to  the  individuals  who  represent  or  compose 
the  moral  or  juridical  person. 

621).  ART.  769.  In  any  case  of  recusation,  the  recusing  party  shall 
be  adjudged  to  pay  the  costs  if  he  should  have  failed  to  prove  the  cause 
pleaded;  and  the  recused  person,  when  the  cause  is  proved  and  he 
should  have  denied  the  truth  of  the  facts  upon  which  it  was  based. 

622).  ART.  770.  The  recusing  party  failing  to  establish  the  causes  of 
the  recusation  pleaded,  shall  also  be  fined  from  twenty  to  fifty  pesos. 
But  if  the  cause  pleaded  should  be  a  criminal  one,  and  it  should  not 
have  been  established,  the  fine  shall  not  be  less  than  fifty  pesos. 


CHAPTER  III. 

Competencies. 

623).  ART.  771.  Competency  is  the  question  arising  betweeen  two 
Judges  or  Tribunals  as  to  which  of  the  two  must  take  cognizance  of  a 
certain  judicial  matter.  It  may  be  affirmative  or  negative. 

It  is  affirmative,  when  each  of  the  Judges  between  whom  the  com- 
petency has  arisen,  maintains  that  he  and  not  the  other  should  take 
cognizance  of  the  matter  in  question. 

It  is  negative,  when  each  of  the  Judges  between  whom  it  arises, 
claims  that  not  he  but  the  other  Judge  should  take  cognizance  of  the 
matter. 

624).  ART.  772.  There  can  be  no  question  of  jurisdiction  between  a 
Judge  or  Tribunal  and  another  directly  subordinate  thereto;  hence 
there  can  never  be  such  a  question 'bet  ween  a  national  Judge  or  Court 
of  first  instance,  and  the  Federal  Supreme  Court. 

625).  ART.  773.  When  a  Judge  shall  claim  that  the  cognizance  of  a 
matter  pertains  to  him,  to  the  exclusion  of  another  who  has  begun  to 
take  cognizance  thereof,  he  shall  send  him  a  communication  stating 
the  grounds  upon  which  he  bases  his  claim,  and  informing  him  of  the 


n6 

competency,  in  the  event  that  he  should  refuse  to  cease  taking  cognizance 
of  said  suit. 

626).  ART.  774.  •  The  Judge  challenged  without  hearing  any  party 
whatsoever,  and  by  a  mere  inspection  of  the  process  and  the  reasons  con- 
tained in  the  communication  received,  shall  decide  within  three  days 
whether  he  withdraws,  or  accepts  the  competency. 

If  he  withdraw,  he  shall  so  state  by  means  of  a  communication  to  the 
Judge  who  addressed  him,  forwarding  to  him  the  principal  record,  after 
a  citation  of  the  parties. 

If  the  Judge  challenged  should  accept  the  competency,  he  shall  so 
inform  the  challenging  Judge,  with  a  written  statement  of  his  reasons 
for  accepting  it. 

Upon  the  acceptance  of  the  competency,  the  cause  of  the  suit  is 
stayed,  until  such  competency  shall  cease  or  be  decided. 

327  first  par.,  subdivision  2,  648. 

627).  ART.  775.  If  the  Judge  who  raised  the  competency  shall  with- 
draw by  virtue  of  the  reasons  adduced  by  the  Judge  challenged,  he  shall 
so  inform  the  latter,  forwarding  to  him,  after  the  citation  of  the  parties, 
the  proceedings  had  by  him  in  the  principal  matter. 

628).  ART.  776.  If  the  Judge  who  raised  the  competency  should  not 
withdraw,  he  shall  so  state  to  the  other  Judge  expressing  the  reasons  for 
his  insistence ;  and  he  shall  transmit  to  the  superior  who  is  to  pass  upon 
the  competency,  the  proceedings  had  with  regard  to  the  latter,  and  the 
principal  record,  if  he  should  have  it  in  his  possession.  The  Judge 
challenged  shall  do  likewise. 

629).  ART.  777.  The  papers  having  been  received  from  both  parties 
by  the  Superior  Tribunal,  and  after  having  heard  the  Attorney  General 
(Procurador  General)  of  the  Union,  who  shall  render  his  opinion  not 
later  than  the  third  day  thereafter,  the  Tribunal  shall  decide  the  com- 
petency within  three  days,  counted  from  that  upon  which  the  Attorney 
General  returns  the  papers. 

630).  ART.  778.  Every  competency  shall  be  decided  merely  in  view 
of  the  proceedings  transmitted  by  the  Judges  between  whom  it  arose, 
without  further  proceedings  than  those  established  in  the  preceding 
article. 

631).  ART.  779.  The  decision  having  been  made  known  to  the  Attor- 
ney General,  it  shall  at  once  be  communicated  to  the  Judges  between 
whom  the  competency  was  disputed,  the  record  of  the  principal  suit 
being  transmitted  to  that  Judge  who,  according  to  the  decision,  is  to 
take  cognizance  thereof. 

632).  ART.  780.  When  a  Judge  who  is  hearing  a  suit  should  be  of  tin- 
opinion  that  he  is  not  competent,  stating  in  a  ruling  all  the  legal  reasons 
he  has  for  believing  that  it  pertains  to  another,  shall  transmit  it  to  him, 


after  the  citation  of  the  parties,  declaring  at  the  same  time  that  if  such 
Judge  does  not  believe  himself  competent,  he  raise  the  negative  com- 
petency. 

633).  ART.  781.  The  Judge  receiving  the  suit,  if  he  should  agree  that 
the  matter  pertains  to  him,  shall  assume  the  cognizance  thereof  and 
shall  so  advise  the  Judge  who  instituted  the  competency.  Should  he 
not  agree,  he  shall  accept  the  competency  within  three  days.  And  as 
to  the  rest,  until  the  decision  and  communication  to  the  respective 
Judges,  the  provisions  of  the  preceding  articles  regarding  affirmative 
competencies,  shall  be  observed. 

634).  ART.  782.  When  the  Judge  to  whom  a  competency  is  com- 
municated, yields,  the  party  not  satisfied  with  such  ruling  may  appeal 
therefrom  within  the  ordinary  term,  and  the  appeal  must  be  allowed  in 
both  effects.  But  the  Judge  who  has  yielded  is  not  the  one  who  is  to 
grant  it,  if  the  competency  be  affirmative,  but  the  Judge  to  whom  the 
matter  is  transferred,  and  the  Federal  Supreme  Court  shall  take  cogni- 
zance of  the  appeal. 

783  to  787- 

635).  ART.  783.  When  the  Judge  to  whom  an  affirmative  comp- 
petency  is  communicated,  is  commissioned,  he  shall  so  advise  the  Judge 
instituting  it,  without  accepting  or  yielding,  and  shall  make  a  report 
transmitting  the  original  communication  from  the.  Judge  challenging 
to  the  commissioning  Judge,  without  suspending  thereby  the  course 
of  his  commission. 

636.)  ART.  784.  Between  Judges  and  officials,  who,  though  not 
judges,  are  vested  with  jurisdiction  to  take  cognizance  of  some  judicial 
matters,  competencies  may  be  raised  with  regard  to  said  matters. 

1082.     Law  169  of  1896,  article  27. 


CHAPTER  IV. 

Consolidation  of  Actions  (autos). 

637).  ART.  785.  The  consolidation  of  record  is  the  union  of  two  or 
more  processes  for  the  purpose  of  hearing  and  deciding  in  a  single 
action  the  controversies  to  which  they  refer. 

638).  ART.  786.  The  consolidation  of  records  may  be  made  only  at 
the  instance  of  a  legitimate  party  and  for  any  of  the  following  causes : 

1 .  When  the  decision  to  be  rendered  in  one  of  the  suits  whose  consoli- 
dation is  requested,  may  produce  an  exception  of  res  judicata  in  the 
other. 

2.  When  in  a  court  of  competent  jurisdiction  there  shall  be  a  suit 
pending  upon  the  same  thing  which  may  be  the  object  of  that  instituted 


n8 

subsequently,  in  which  case  the  second  Judge  shall  be  obliged  to  cease 
his  proceedings  and  the  Judge  first  having  taken  cognizance,  shall  con- 
tinue. 

3.  When  an  individual  who  shall  have  a  number  of  causes  pending 
shall  have  bankruptcy  proceedings  instituted  against  him,  and  in  such 
case  the  other  causes  must  be    consolidated  with  the  universal  in- 
solvency proceedings,  if  the  debtor  or  any  of  the  creditors  should  so 
request. 

4.  When  testamentary  or  intestate  proceedings  are  begun,  which, 
being  universal  also,  attract  or  call  and  with  which  must  be  consoli- 
dated, if  a  legitimate  party  should  so  request,  all  the  partial  suits  which 
may  be  pending  against  the  hereditary  assets. 

5.  When  if  the  suits  should  be  continued  separately,  the  unity  of  the 
causes  would  be  divided. 

460. 

639).  ART.  787.  The  unity  of  a  cause  is  understood  to  be  divided,  for 
the  purposes  of  the  provision  contained  in  the  last  paragraph  of  the 
preceding  article. 

1.  When  the  litigants  are  the  same,  the  action  the  same  and  the 
thing  in  litigation  the  same. 

2.  When  the  actions  are  different,  but  the  thing  and  the  litigants  are 
the  same. 

3.  When  the  things  are  different,  but  the  action  and  the  litigants  are 
the  same. 

4.  When  the  actions  arise  from  the  same  cause,  even  though  exer- 
cised against  a  number,  and  consequently,  there  should  be  a  diversity 
of  persons. 

1472. 

5.  When  the  action  and  the  things  are  the  same,  but  the  persons 
different,  as  in  proceedings  for  demarcation,  partition  of  a  thing  held 
in  common,  and  in  other  so-called  double  actions/and 

6.  When  the  proceedings  are  considered  generic  in  one  case  and 
specific  in  the  other,  as  the  latter  cannot  be  divided.* 

640).  ART.  788.  Even  though  the  unity  of  the  cause  should  be 
divided,  the  actions  must  not  be  consolidated  •  i .  When  it  shall  not  be 
requested  by  any  of  the  parties,  as  the  Judge  cannot  order  it  ex  profinO 
motu;  and  2.  When  the  Judge  does  not  have  full  jurisdiction  to  take 
cognizance  of  all  the  consolidated  actions. 

638  first  par.,  655. 

*  There  are  no  actions  which  can  be  considered  of  a  generic  or  specific  character. 
But  there  may  be  an  action  involving  a  generic  thing,  and  one  involving  a  specific 
thing.  (Angarita.) 


641.  ART.  789.  With  the  exception  of  the  cases  of  consolidation  men- 
tioned, no  Judge  or  Court  can  retain  the  cognizance  of  a  cause  pending 
in  another  court ;  nor  can  he  call  for  proceedings  pending  in  another  court 
not  even  for  the  purpose  of  examining  them,  excepting  in  the  cases 
expressly  determined  by  the  law. 

588,  642,  647,  780  second  par.,  794,  796,  1223. 

642).  ART.  790.  The  parties  shall  not  be  permitted  to  introduce  in 
support  of  their  intention,  proceedings  which  should  be  filed,  or  which 
may  be  pending  in  other  courts,  as  they  must  either  request  their  con- 
solidation in  cases  in  which  it  is  permitted  or  certified  copies  of  the 
documents  which  they  wish  to  introduce  as  evidence. 

643).  ART.  791.  The  consolidation  must  be  requested  of  the  Judge 
who  is  to  take  cognizance  of  the  causes  joined,  stating  the  reasons  for 
the  consolidation  of  the  actions ;  this  petition  may  be  made  at  any  stage 
of  the  cause. 

658. 

644).  ART.  792.  If  one  and  the  same  Judge  takes  cognizance  of  the 
actions  the  consolidation  of  which  is  requested,  he  shall  order  that  the 
petition  be  referred  for  six  days  to  all  those  who  may  be  parties  to  said 
actions. 

645).  ART.  793.  During  said  term  the  parties  may  support  or  object 
to  the  consolidation  in  writing,  stating  the  reasons  for  their  action ;  but 
they  cannot  remove  the  records  from  the  office  of  the  Secretary,  but 
must  examine  them  there. 

646).  ART.  794.  The  term  of  six  days  having  expired,  the  Judge  or 
Tribunal,  within  the  next  three  days,  shall  decide  the  incident  granting 
or  denying  the  consolidation ;  such  decisions  if  made  by  Judges  of  First 
Instance,  may  be  appealed  from  to  the  Federal  Supreme  Court. 

647).  ART.  795.  If  the  actions  the  consolidation  of  which  is  requested 
are  being  prosecuted  in  different  Courts,  and  the  Judge  of  whom  it  is 
requested  should  find  that  it  is  based  upon  a  legal  cause,  he  shall  send 
a  communication  to  the  Judge  taking  cognizance  of  the  other  action  in 
order  that  he  may  send  him  the  process ;  upon  the  receipt  of  the  latter, 
the  proceedings  shall  conform  to  the  provisions  of  the  three  preceding 
articles. 

648. 

648).  ART.  796.  The  Judge  of  whom  the  process  of  which  he  is  taking 
cognizance  is  requested,  must  transmit  it  at  once,  after  the  citation  of 
the  parties  to  the  suit,  consequently  suspending  the  course  of  the  cause 
and  likewise,  the  jurisdiction  of  the  Judge  therein,  until  the  process  is 
returned  to  him  by  reason  of  the  consolidation  not  having  been  proper. 


120 

649)-  ART.  797.  When  a  consolidation  shall  be  denied  in  which  for 
the  purpose  of  hearing  and  determining  the  incident  it  should  have  been 
necessary  to  call  for  records  of  one  or  more  courts,  in  addition  to  the 
costs,  the  person  who  requested  it  shall  be  adjudged  to  pay  a  compensa- 
tion ranging  from  fifty  to  one  hundred  pesos  in  favor  of  the  parties  who 
may  have  been  prejudiced. 

647. 

650).  ART.  798.  If  the  proceedings  are  pending  before  two  Judges  of 
which  one  is  of  higher  category  than  the  other,  and  both  request  of  each 
other  the  transmission,  the  Judge  of  the  lower  category  is  obliged  to 
send  the  proceedings  to  the  one  of  higher  category. 

651).  ART.  799.  In  view  simply  of  the  petition  for  consolidation,  and 
without  any  proceeding,  the  Judge  may  deny  it  if  he  see  that  it  is  not 
based  upon  a  legal  cause. 

This  ruling  may  be  appealed  from,  but  only  in  a  devolutive  effect. 

652).  ART.  800.  In  every  case  of  consolidation  the  course  of  the  suit 
nearest  its  termination  shall  be  stayed,  until  the  other  shall  be  at  the 
same  stage.  Exception  is  made  of  the  consolidations  with  universal 
proceedings,  to  whose  procedure  those  consolidated  therewith  shall  at 
once  conform. 

656,  659,  1123. 

653).  ART.  80 1.  The  effects  of  the  consolidation  are:  That  the  acts 
consolidated  be  prosecuted  in  a  single  proceeding,  and  be  terminated  by 
a  single  decision,  and  that  the  partial  jurisdiction  of  the  Judges  in  each 
of  the  causes  of  which  they  were  taking  cognizance  cease. 

659- 

The  following  articles  are  supplemental : 

654).  ART.  88  of  law  105  of  1890.  In  addition  to  the  causes  of  consoli- 
dation mentioned  in  article  786  *  of  the  Code  the  following  are  such  also : 

1.  When  two  or  more  executions  are  being  prosecuted  against  the 
same  property,  unless  by  virtue  of  the  desistance  of  one  or  more  of  the 
execution  creditors  to  the  right  to  recover  from  the  value  of  said  prop- 
erty, the  consolidation  should  not  be  necessary. 

2.  When  an  executory  action  and  an  intervention  in  another  execu- 
tion take  place  simultaneously ;  or  two  or  more  interventions  in  different 
actions,  for  the  enforcement  of  the  same  right. 

1134,  1136. 

655).  ART.  89  of  Law  105  of  1890.     When  two  or  more  executions  are 
*  Ordinal  638. 


121 

levied  on  the  same  property,  the  consolidation  shall  be  decreed  ex  pro- 
prio  motu  or  on  the  petition  of  a  party;  it  shall  be  sufficient  that  there 
be  authentic  evidence  of  the  fact. 

638  first  par.,  640,  656. 

656).  ART.  90  of  Law  105  of  1890.  Notice  of  the  order  of  consili- 
dation  shall  be  served  upon  all  the  parties  to  the  suits  the  consolida- 
tion of  which  is  in  question,  and,  in  a  necessary  case,  the  letters 
rogatory  and  communications  which  may  be  necessary  shall  be  issued. 

657).  ART.  91  of  Law  105  of  1890.  Any  execution  creditor  may  object 
to  the  consolidation  of  the  execution  desired  by  him,  renouncing  for  this 
purpose  the  right  to  recover  from  the  value  of  the  property  levied  on  at 
the  same  time  by  virtue  of  one  or  more  other  executions. 

654  subdivision  i. 

658).  ART.  92  of  Law  105  of  1890.  The  court  competent  to  decree 
the  consolidation  in  the  two  cases  mentioned,  is  that  in  which  the  attach- 
ment of  the  property  shall  have  been  first  decreed. 

643- 

659).  ART.  93  of  Law  105  of  1890.  The  consolidation  having  taken 
place,  the  executory  action  to  which,  according  to  the  preceding  article, 
the  other  actions  have  been  consolidated,  continues  its  legal  course, 
which  actions  shall  have  the  character  of  suits  in  intervention  in  the 
executory  action  referred  to. 

653- 

660).  ART.  94  of  Law  105  of  1890.  The  preceding  provisions  are  not 
an  obstacle  to  the  Judge  who  takes  cognizance  of  all  the  suits  consoli- 
dated, advancing  each  execution  separately  with  regard  to  the  property 
which  the  respective  creditor  wishes  to  levy  on  exclusively,  for  which 
purpose,  on  the  petition  of  the  party,  a  copy  shall  be  made  of  what  may 
be  proper,  and  a  separate  record  made  up. 


CHAPTER  V. 

Searches. 

661).  ART.  802.  The  Justices  and  Judges  of  the  Nation  may  search 
the  houses  and  estates  situated  within  the  same,  or  enter  thereon  even 
against  the  will  of  those  who  inhabit  or  occupy  them,  in  the  following 
cases : 

i.  When  there  should  be  within  the  house  or  estate  some  person  who 
is  to  be  cited  or  notified  personally  of  some  judicial  order  or  decision. 


122 

2.  When  within  the  house  or  estate  is  situated  property  to  be  seques- 
trated, appraised  or  exhibited  in  court. 

3.  When  the  house  or  estate  itself  is  to  be  sequestrated  or  appraised 
in  a  suit. 

4.  When,  in  accordance  with  the  law,  an  ocular  inspection  must  be 
made  as  evidence,  either  of  the  house  or  estate  searched  or  the  things 
existing  therein. 

663,  669. 

662).  ART.  803.  The  Justices  and  the  Judges  taking  cognizance  of  the 
causes  in  which  the  necessity  for  the  search  arises,  are  competent  to 
decree  such  search,  or  it  may  be  decreed  by  the  Judges  commissioned  by 
the  former  to  execute  any  of  the  measures  mentioned  in  the  preceding 
article. 

663).  ART.  804.  Whenever  one  of  the  first  cases  of  the  said  article  is 
involved,  the  search  must  be  expressly  decreed ;  but  if  either  of  the  last 
two  should  be  involved,  the  order  directing  the  sequestration,  the 
appraisal  or  the  ocular  inspection,  impliedly  contains  the  order  to  search 

if  necessary. 

• 

664. 

664).  ART.  805.  When  it  is  necessary  that  the  search  be  expressly 
decreed,  it  shall  be  necessary  that  it  be  requested  by  a  legitimate  party 
and  that  it  be  well  known  or  that  the  person  interested  and  two  wit- 
nesses swear,  that  within  the  house  or  estate  can  be  found  the  person,  or 
the  things  sought. 

665).  ART.  806.  In  order  to  conduct  the  search  in  any  of  the  cases  of 
article  802,  the  Justice  or  Judge  who  is  to  make  it,  must  go  accom- 
panied by  his  Secretary,  the  persons  interested  in  the  suit  being  also 
permitted  to  attend,  and  two  witnesses  if  deemed  advisable;  the  Judge 
or  Justice  shall  call  at  the  door  of  the  house  or  estate,  and  shall  inform 
the  owner  or  principal  person  in  charge  thereof,  who  he  is  and  the  pur- 
pose of  his  visit.  If  within  five  minutes  no  answer  should  be  made  or 
an  entrance  should  not  be  permitted,  he  shall  make  another  intimation, 
informing  the  owner  or  the  person  in  charge  of  the  house  or  estate  of  the 
liability  he  incurs  through  his  refusal ;  and  if  four  minutes  more  should 
pass  without  entrance  being  allowed,  he  shall  proceed  to  the  search 
availing  himself  of  force  if  necessary. 

666).  ART.  807.  If  the  house  should  be  closed,  and  no  one  should 
make  answer  to  the  call,  upon  the  expiration  of  seven  minutes  an 
entrance  shall  be  forced  and  the  search  made. 

667).  ART.  808.  The  result  of  every  search  shall  be  embodied  in  a 
record  which  shall  be  signed  by  the  Justice  or  the  Judge,  his  Secret  a  ry 
and  the  witnesses  who  may  have  attended. 


I23 

668).  ART.  809.  When  it  is  desired  to  search  an  unoccupied  field,  as 
soon  as  the  Justice  or  Judge  shall  arrive  at  any  of  its  boundaries,  he  shall 
make  the  call  prescribed  aloud,  and  upon  the  expiration  of  seven  min- 
utes shall  proceed  with  the  search. 

669).  ART.  810.  Every  judicial  search  must  be  made  after  five  A.  M. 
and  before  six  P.  M.,but  if  it  be  feared  that  the  effects  to  be  seques- 
trated, appraised  or  exhibited  may  be  removed,  the  Justice  or  Judge 
shall  apply  to  the  respective  Chief  of  Police  in  order  that,  during  the 
night  time,  guards  may  be  placed  thereover  to  prevent  the  removal. 

670).  ART.  811.  The  judicial  search  shall  be  conducted  in  spite  of 
any  special  jurisdiction  (fuero)  or  privilege,  with  the  exception  of  that 
enjoyed  by  diplomatic  agents  in  accordance  with  the  principles  of  Inter- 
national law  and  the  treaties  and  laws  of  the  Union. 

CHAPTER  VI. 
Desistance. 

671).  ART.  812.  Any  person  who  shall  have  interposed  an  appeal  or 
instituted  a  suit,  may  desist  therefrom  expressly  or  impliedly. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subro- 
gated  by  the  following : 

672).  ART.  95  of  Law  105  of  1890.  Any  person  who  shall  have  inter- 
posed an  appeal,  or  instituted  a  suit,  may  desist  therefrom  expressly  or 
impliedly.  A  desistance  from  an  appeal  shall  be  made  before  the  same 
Judge  who  may  have  granted  it,  if  the  record  shall  not  have  been  sent 
to  the  superior  court,  or  before  the  latter  if  it  shall  already  have  been 
received  by  the  same.  The  desistance  from  a  suit  shall  be  made  before 
the  Judge  or  Tribunal  who  may  be  taking  cognizance  of  the  main  issue. 

683. 

673).  ART.  813.  In  order  that  an  express  desistance  may  be  valid,  it 
is  necessary  that  it  be  made  voluntarily  and  by  a  capable  person,  and 
by  means  of  a  petition  which  the  person  desisting  shall  deliver  per- 
sonally to  the  respective  Judge  or  Justice  before  his  Secretary. 

674).  ART.  814.  Every  express  desistance  must  be  simple  and  with- 
out any  condition.  If  conditional,  the  consent  of  the  co-litigant  shall 
be  necessary  to  admit  it,  a  consent  which  must  be  expressed  in  the  same 
terms  as  the  desistance. 

679. 

675).  ART.  815.  A  desistance  from  the  suit  is  not  admissible:  i.  In 
the  causes  in  which  persons  under  age,  the  insane,  demented  or  other 


I24 

persons  under  tutorship  or  curatorship,  are  parties,  on  the  part  of  such 
persons,  even  though  the  desistance  be  made  by  their  tutors ;  and  2 .  In 
suits  through  attorneys  in  fact  when  the  latter  are  not  specially  autho- 
rized to  desist. 

303,  second  par. 

676).  ART.  8 1 6.  The  Representative  of  the  Nation  cannot  desist 
from  any  suit,  excepting  in  the  cases  prescribed  in  article  192.* 

305.     Art.  ii  of  Law  169  of  1896. 

677) .  ART.  817.  The  desistance  from  a  suit  replaces  things  in  the  state 
in  which  they  were  before  it  was  interposed ;  and  it  cannot  again  be  in- 
stituted by  the  person  desisting,  nor  by  his  representatives  against 
the  same  person,  nor  against  the  representatives  of  the  latter,  reserving 
the  express  agreements  made  at  the  time  of  desisting. 

681. 

The  following  article  is  supplemental : 

678).  ART.  96  of  Law  105  of  1890.  When  during  the  course  of  an 
action  the  principal  suit  is  desisted  from,  the  demand  in  reconvention 
which  may  have  been  instituted  shall  follow  its  course  before  the  Judge 
who  may  be  hearing  it,  whatever  be  the  amount  involved. 

86 1,  863,  683. 

679).  ART.  8 1 8.  The  simple  desistance  on  the  part  of  the  defendant, 
renders  him  liable  in  accordance  with  the  complaint. 

674- 

680).  ART.  819.  Desistance  from  an  appeal  produces  the  effect  of 
making  final  the  decision  or  ruling  appealed  from. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  following : 

681).  ART.  97  of  Law  105  of  1890.  Desistance  from  an  appeal  pro- 
duces the  effect  of  making  final  the  ruling  or  decision  appealed  from, 
when  the  opposite  party  should  not  have  appealed  from  the  same  ruling 
or  decision. 

682).  ART.  820.  The  desistance  shall  prejudice  only  the  person  mak- 
ing it,  and  said  person  shall  pay  the  costs  of  the  suit  or  of  the  appeal 


*  Art.  192  cited,  has  been  repealed  as  it  formed  part  of  Book  I  of  the  Judicial  Oxk  . 
a  Book  which  was  repealed  by  article  230,  ordinal  No.  294,  of  the  present  Book  I. 
( >nlinal  No.  243,  of  Book  I,  in  force,  subrogatesart.  192  of  the  Book  repealed 


125 

which  he  may  have  abandoned,  if  there  should  not  have  been  a  special 
agreement  between  the  parties. 

H45- 

683).  ART.  821.  An  implied  desistance  takes  place  only  when  the 
plaintiff  or  appellant  actually  abandons  the  suit,  and  the  preceding  pro- 
visions regarding  a  simple  and  express  desistance  apply  to  him. 

It  shall  be  understood  that  the  plaintiff  abandons  the  suit  in  the  case 
provided  for  in  article  489.* 

3°3>  3i9,  320,  677,  684,  740,  782. 


684).  ART.  822.  The  abandonment  and  the  desistance  presumed  from 
the  same  shall  be  declared  by  the  Judge  on  the  petition  of  the  opposing 
party,  after  a  hearing  and  determination  of  the  incident,  whether  the 
plaintiff  make  answer  or  not  to  the  reference  made  to  him. 

If  the  latter  should  be  represented  by  an  attorney,  who  does  not  have 
the  express  power  to  desist  from  the  suit,  the  incident  referred  to  shall 
be  heard  and  decided  with  the  intervention  of  the  party  in  person  if  he 
should  be  present  in  the  place  of  the  suit. 

683. 
*  This  is  ordinal  296,  which  was  expressly  repealed  by  art.  338  of  Law  105  of  1890. 


126 
TITLE   IV. 

FIRST  AND  LAST  CHAPTER. 
Decisions  and  Judgments. 

685).  ART.  823.  The  words  auto  and  sentencia  decision  and  judgment 
have  the  same  meaning. 

686) .  ART.  824.  A  definitive  judgment  is  that  rendered  upon  the  con- 
troversy which  has  been  the  subject  of  the  suit,  that  is  on  the  main  issue. 

687).  ART.  825.  An  interlocutory  decree  or  judgment  is  that  which 
decides  a  point  or  question  incidental  to  the  suit. 

688) .  ART.  826.  An  order  of  mere  practice  is  that  whose  purpose  is  to 
direct  the  procedure  or  the  course  of  the  suit. 

689.  ART.  827.  A  final  judgment  (sentencia  ejecutoriada)  is  that  from 
which  no  appeal  lies  or,  regarding  which  a  consultation  is  not  necessary ; 
and  that  which,  even  though  appealable,  shall  not  have  been  appealed 
from  within  the  legal  term. 

692,  693,  727  second  par.     Law  169  of  1896,  article  28,  which 
definitely  subrogates  this  article. 

Subrogated  by  the  following  article.  As  the  subrogation  is  complete 
this  article  has  been  considered  as  impliedly  repealed,  for  which  reason 
an  identical  article  was  introduced  in  Law  169  of  1896,  which  replaces  it, 
viz.,  art.  28,  just  cited. 

690).  ART.  238  of  law  153  of  1887.  Expressly  repealed  by  article 
338  of  Law  105  of  1890,  and  subrogated  by  article  28  of  Law  169  of  1896, 
cited. 

691).  ART.  828.  Expressly  repealed  by  article  338  of  Law  105  of 
1 890,  and  subrogated  by  the  following : 

692).  ART.  98  of  Law  105  of  1890.  In  the  last  of  the  cases  of  article 
827  of  the  Judicial  Code,  the  judgment  becomes  final  by  the  mere  lapse 
of  time;  but  it  is  necessary  that  the  party  interested  request  that  the 
finality  be  declared  by  the  respective  superior  Judge  or  Tribunal,  who 
shall  decree  it,  with  a  citation  of  the  opposing  party,  the  latter  being 
permitted  to  plead  that  the  time  has  not  expired,  or  that  it  has  been 
suspended  for  a  legal  cause.* 

693).  ART.  829.  A  judgment  which  must  be  consulted,  never  becomes 
final  until  it  is  consulted.  Consequently,  the  decison  upon  that  con- 
sulted, is  the  one  which  has  the  force  of  a  definitive  judgment. 

886. 

*  Article  827  referred  to  herein,  is  ordinal  art.  689,  \\liu  h  was  subrogated  by 
ordinal  art.  690,  which,  in  its  turn,  became  article  338  of  Law  105,  as  has  been  stated. 


127 

694)-  ART.  830.  The  judgments  of  the  Federal  Supreme  Court  and  of 
the  national  Courts  do  not  require  the  formality  of  registration  in  order 
to  produce  all  their  effects. 

2652,  subdivisions  2  and  6  of  the  Civil  Code. 

695).  ART.  831.  A  final  judgment  must  be  executed;  it  is  a  ground 
for  the  exception  of  res  judicata,  and  annuls  any  other  judgment  sub- 
sequent thereto,  rendered  in  the  same  matter  and  between  the  same 
persons,  with  the  exception  of  the  cases  mentioned  in  the  following 
article  and  decisions  rendered  in  summary  proceedings,  as  while  they 
must  be  fulfilled  and  executed,  they  may  be  reviewed  in  an  ordinary 
action,  in  the  cases  expressly  provided  for  by  the  law. 

689,  692,  693,  886,  1074. 

696).  ART.  832.  When  the  person  obliged  to  deliver  a  thing  should 
be  adjudged  in  accordance  with  the  law,  by  reason  of  having  lost  said 
thing,  to  the  payment  of  the  value  thereof,  or  to  indemnify  any  loss  and 
damage,  if  the  owner  should  afterwards  recover  the  thing,  the  effect 
of  the  judgment  shall  cease  and  if  the  person  responsible  should  have 
made  the  payment  already,  he  shall  be  entitled  to  the  recovery  of  the 
amount  given  by  him. 

697).  ART.  833.  A  decision  rendered  regarding  an  action  deduced 
upon  a  thing,  does  not  prevent  a  suit  upon  another  different  action 
deduced  with  regard  to  the  same  thing. 

23- 

698).  ART.  834.  Every  decision  or  judgment  shall  be  headed  by  the 
name  of  the  Court  or  Tribunal  rendering  it,  and  the  date,  all  written  out. 
It  shall  be  subscribed  by  the  Judge  or  the  Justice  and  the  Secretary. 

705- 

699).  ART.  835.  A  definitive  judgment,  or  one  having  the  force  of  a 
definitive  judgment,  must  be  rendered  upon  the  thing,  the  amount  or 
the  act  sued -for;  but  hereon  only  and,  it  shall  contain  a  motive  and 
resolutory  parts. 

827- 

700).  ART.  836.  In  the  motive  part  shall  be  stated,  with  the  proper 
separation,  the  facts  which  have  been  the  subject  of  evidence  and  the 
argument,  and  the  grounds  for  the  decision  rendered,  stating  precisely 
the  legal  provisions  or  the  reasons  of  equity  or  justice  which  constitute 
such  grounds. 

701. 


128 

yoi ).  ART.  837.  In  every  judgment  of  whatsoever  kind,  to  be  ren- 
dered by  the  officials  of  the  judiciary,  they  must  take  into  consideration 
that  the  object  of  judicial  proceedings,  and  the  consequent  rules  which 
the  laws  establish  therefor,  is  that  the  judgment  be  in  accordance  with 
the  truth  as  to  the  facts,  and  in  accordance  with  the  substantive  law 
as  to  the  law.  Consequently,  any  interpretation  and  application  of  the 
legal  provisions  relating  to  judicial  proceedings  must  be  directed  to 
those  ends  which  are  those  of  jurisprudence. 

702) .  ART.  838.  In  the  resolutory  part  shall  be  stated  clearly  and  pre- 
cisely the  manner  of  the  decision  of  the  controversy,  giving  each  party 
his  rights,  and  the  Judge  first  stating  that  he  does  so  "administering 
justice  in  the  name  of  the  United  States  of  Colombia  and  by  authority 
of  the  law." 

701,  703,  707,  724,  827. 

703).  ART.  839.  When  there  shall  have  been  a  number  of  points  in 
litigation,  judgment  shall  be  rendered  on  each  one  of  them,  with  the 
proper  separation. 

707,  827. 

704) .  ART.  840.  When  there  shall  be  an  adjudication  of  fruits,  interest, 
damages  or  losses,  the  extent  or  amount  thereof  shall  be  fixed  by  a  net 
sum,  or  there  shall  be  established  at  least,  the  bases  in  accordance  with 
which  the  liquidation  is  to  be  made ;  only  in  the  event  that  either 
should  not  be  possible,  shall  the  adjudication  be  made  reserving  to  the 
parties  their  rights  to  have  the  amount  or  the  extent  of  the  fruits, 
interest  or  damages  fixed  in  another  suit. 

724,  749,  755. 

705).  ART.  841.  Every  interlocutory  judgment  or  ruling  shall  begin 
with  the  word  "vistos"  after  the  name  of  the  Court  or  Tribunal  and  the 
date. 

698. 

706).  ART.  842.  Every  definitive  judgment  shall  be  published  in  open 
court  the  same  day  that  it  may  be*  signed,  or  the  day  following.  The 
act  shall  take  place  by  the  Secretary  reading  in  the  presence  of  the  Judge 
or  of  the  Justices  the  resolutory  part  of  the  judgment. 

707).  ART.  843.  All  questions  which  may  have  been  the  subject  of 
argument  shall  be  decided  in  the  judgment. 

703- 


129 

708).  ART.  844.  Notice  of  every  ruling  or  judgment  shall  be  served  on 
the  parties  within  the  terms  prescribed  in  the  respective  chapter. 

192  to  230. 

709).  ART.  845.  The  decisions  and  judgments  which  close  an  instance 
shall  be  copied  in  full  in  a  book  consisting  of  common  paper,  which  the 
Secretary  shall  keep.  This  book  is  authentic  in  any  cases  of  loss  of  or 
alteration  in  the  processes 

710).  ART.  846.  A  judgment  rendered  in  a  suit  prejudices  only  those 
who  litigated  in  person  or  through  legal  representatives,  or  their  heirs,  or 
their  legatees,  if  the  latter  should  be  the  legatees  of  the  same  thing  which 
was  the  subject  of  the  suit,  and  those  who  may  subsequently  acquire 
from  the  former  said  thing  by  any  title,  in  accordance  with  the  pro- 
visions of  the  following  articles. 

729,  751  second  par.,  752,  774,  1055,  1 130  and  citations. 

711).  ART.  847.  If  a  suit  for  a  thing  belonging  to  another  should  be 
brought  against  the  possessor  thereof  ,  and  the  latter  should  be  defeated 
the  judgment  rendered  in  said  suit  will  not  prejudice  the  owner,  whether 
or  not  he  shall  have  had  notice  of  the  suit,  and  he  may  demand  the 
thing  of  any  person  who  may  have  it,  reserving  the  right  of  pre- 
scription, in  accordance  with  the  substantive  laws.  But  if  the  person 
who  lost  the  suit,  possessed  in  the  name  of  the  person  claiming  to  be 
the  owner,  the  provisions  of  article  276*  shall  be  observed. 

952>  953>  of  the  Civil  Code. 

712).  ART.  848.  If  any  of  the  heirs  of  a  debtor  should  be  individually 
adjudged  to  pay  the  debt,  such  judgment  will  not  prejudice  the  other 
heirs,  even  though  they  should  have  had  notice  of  the  suit. 

713.      141 1  to  1 434  of  the  Civil  Code. 

713).  ART.  849.  If  any  of  the  heirs  of  a  creditor  should  institute  a 
suit  for  the  payment  of  the  debt  and  judgment  should  be  rendered 
against  him,  such  judgment  shall  not  prejudice  the  co-heirs  as  to  the  part 
of  the  credit  corresponding  to  them,  even  though  they  should  have  had 
knowledge  of  the  suit. 

712. 

714).  ART.  850.  When  two  or  more  persons  shall  constitute  them- 
selves the  debtors  of  others  for  the  whole  or  jointly  and  in  solidum, 
or  when  a  thing  should  be  promised  to  a  number,  so  that  each  of  them 

*  Ordinal  28. 


130 

may  sue  for  the  whole,  in  such  cases  the  judgment  rendered  against 
any  of  said  persons  by  reason  of  the  things  for  which  they  are  obli- 
gated, or  to  which  they  were  entitled,  prejudices  all  those  jointly  in- 
volved, even  though  some  of  them  should  not  have  taken  part  in  said 
suit. 

729. 

715).  ART.  851 .  If  a  person  should  have  a  thing  of  another  in  pledge 
and  should  see  and  know  that  the  person  who  pledged  it  has  been  sued 
by  another  for  the  ownership  thereof,  if  he  should  not  contradict  that 
complaint  and  a  judgment  should  be  rendered  against  the  person  who 
pledged  the  thing,  such  judgment  will  prejudice  him  who  received  the 
pledge,  who  shall  be  obliged  to  deliver  it  to  the  plaintiff  in  whose  favor 
judgment  may  have  been  rendered. 

The  same  must  be  observed  if  the  judgment  should  be  rendered  before 
the  giving  of  the  pledge,  but  if  after  the  thing  may  have  been  pledged 
he  who  pledged  it  should  enter  into  a  suit  regarding  it,  the  person  who 
received  the  pledge  not  knowing  thereof,  the  latter  shall  not  be  preju- 
diced by  the  judgment  rendered 

729. 

716).  ART.  852.  If  anyone  should  know  that  the  parents  of  his  wife 
have  been  sued  for  any  of  the  things  given  the  former  by  reason  of  mar- 
riage and  should  not  contradict  the  complaint,  the  judgment  rendered 
in  such  suit  shall  prejudice  him  as  if  he  had  intervened  therein. 

729. 

717).  ART.  853.  If  the  purchaser  of  a  thing  sees  and  knows  that  the 
vendor  becomes  a  party  to  a  suit  with  another  thereon  and  does  not 
contradict  it,,  the  judgment  rendered  against  the  vendor  will  prejudice 
the  purchaser  also  reserving,  his  right  of  warranty  against  the  person 
who  made  him  the  sale. 

The  provisions  of  this  article  shall  apply  only  when  the  vendor  shall 
not  have  delivered  the  thing  to  the  purchaser,  for  if  the  latter  should 
already  be  in  possession  thereof,  the  suit  should  have  been  brought 
against  him,  and  no  proceedings  which  have  been  entered  into  without 
his  assent  shall  prejudice  him. 

729.     952  of  the  Civil  Code. 

718).  ART.  854.  The  judgment  rendered  in  a  suit  of  filiation  between 
father  and  son,  will  benefit  or  prejudice  the  relatives,  even  though  they 
should  not  have  taken  part  in  the  suit. 

729.     216  to  223  and  citations  of  the  Civil  Code. 


719)-  ART.  855.  If  a  person  should  without  legal  cause  disinherit  any 
of  his  descendants  or  of  his  ascendants,  in  a  proper  case,  and  should 
institute  others  as  the  heirs  to  his  property,  the  judgment  rendered 
hereupon  shall  prejudice  not  only  the  heirs  who  defended  the  testa- 
ment in  court,  but  also  the  legatees  in  case  the  legacies  encroach  on 
the  legal  portions. 

729.     1419  of  the  Civil  Code. 

720).  ART.  856.  In  acts  which  may  give  rise  to  a  popular  action 
against  those  executing  them,  if  any  person  should  sue  thereon  and 
judgment  should  be  rendered  in  favor  of  the  defendant  no  one  can 
again  bring  a  suit  upon  the  same  acts  under  the  same  popular  right  of 
action,  unless  there  shall  have  been  fraud  in  the  first  suit. 

721).  ART.  857.  If  one  of  the  co-owners  of  an  estate  held  in  common 
•should  claim  a  servitude  in  favor  thereof,  the  judgment  declaring  the 
servitude  shall  benefit  all  the  co-owners;  but  a  judgment  denying  it, 
shall  prejudice  only  those  who  may  have  litigated. 

729. 

722).  ART.  858.  If  in  a  suit  of  interest  to  a  number,  a  judgment 
should  be  rendered  against  all,  and  only  one  or  some  of  them  should 
appeal  therefrom,  if  on  the  appeal  a  favorable  judgment  reversing  the 
first  one  should  be  rendered,  it  shall  benefit  all,  as  if  all  had  appealed. 

729. 

723).  ART.  859.  A  definitive  judgment  cannot  be  revoked  nor 
amended  by  the  Judge  who  rendered  it,  but  if  silence  should  have  been 
observed  therein  regarding  fruits,  interest,  damages  and  costs  of  pro- 
cedure, or  judgment  should  have  been  rendered  for  more  or  less  than 
the  amount  due,  the  Judge  may  subsequently  decide  thereon,  provided 
that  the  declaration  be  requested  of  him  by  a  legitimate  party  on  the 
same  day  upon  which  notice  of  the  judgment  is  made,  or  within  three 
days  after  its  rendition,  if  it  should  not  be  necessary  to  serve  notice  of 
the  latter  immediately. 

Expressly  repealed  by  article  338  of  Law  105,  and  subrogated  by  the 
following : 

724) .  ART.  99  of  Law  105  of  1 890.  (This  article  merely  corrects  what 
was  an  obvious  repetition  or  clerical  error  in  the  preceding  and  which 
was  corected  in  the  translation  as  it  could  not  be  reproduced  in  English.) 

726,  728,  205,  199. 

Subrogated  by  article  1 7  of  Law  1 69  of  1 896,  and  expressly  repealed 
by  article  17  of  Law  169  of  1896. 


132 

725)-  ART.  860.  The  Judge  may  also,  on  the  petition  of  a  legitimate 
party,  elucidate  obscure  sentences  or  those  having  a  double  meaning  in 
the  definitive  judgment  which  might  be  a  real  cause  of  doubt. 

Expressly  repealed  by  art.  338  of  Law  105  and  subrogated  by  the 
following : 

726).  ART.  100  of  Law  105  of  1890.  The  superior  Judge  or  Tribunal 
may  also,  on  the  petition  of  a  legitimate  party,  elucidate  obscure  sen- 
tences or  those  having  a  double  meaning  in  the  definitive  judgment 
which  might  be  a  real  cause  of  doubt. 

724,  728. 

727).  ART.  861.  Interlocutory  decisions  and  those  of  mere  practice 
may  be  amended  and  revoked  by  the  Judge  who  rendered  them,  for  a 
legal  cause  and  on  the  petition  of  a  legitimate  party  made  within  the. 
peremptory  term  of  three  days,  counted  from  the  date  of  service  of 
notice  of  the  decision. 

Therefore,  no  interlocutory  decision  or  judgment  can  be  considered 
final  until  the  expiration  of  the  three  days  granted  for  requesting  its 
amendment  or  revocation,  unless  that  within  such  time  the  parties  shall 
in  some  manner  have  manifested  that  they  agree  thereto. 

689,  229. 

728).  ART.  862.  Any  judicial  decision,  of  whatsoever  class,  in  which 
a  pure  and  manifest  arithmetical  error  shall  have  been  committed,  may 
be  corrected  or  amended  at  anytime  by  the  Judge  or  Tribunal  who  ren- 
dered it,  ex  proprio  motu  or  on  the  petition  of  a  party,  but  only  as  to  the 
numerical  error  committed. 

724,  726. 

729).  ART.  863.  Any  person  who  might  be  prejudiced  or  benefited 
by  a  judgment,  even  though  not  a  party  to  the  suit,  may  intervene 
therein  without  the  necessity  of  citation,  supporting  or  defending  the 
cause  which  interests  him. 

710,  714  to  719,  721,  722,  742,  774. 

The  following  article  is  supplemental : 

730).  ART.  1 01  of  Law  105  of  1890.  The  judgments  rendered  by  the 
Supreme  Court  of  Justice  with  regard  to  the  Ordinances  of  the  Depart- 
ments, must  be  executed  upon  becoming  officially  known  to  the  autho- 
rities entrusted  with  their  execution.  An  ollicial  knowledge  shall  be 
presumed  by  the  fact  of  the  receipt  in  the  capital  of  the  respective  I)r- 
partraent  of  the  newspaper  destined  to  the  publication  of  such  judg- 
ments. 


.    . ;  133 

TITLE  V. 

FIRST  AND  LAST  CHAPTER. 

Costs. 

731).  ART.  864.  In  every  definitive  or  interlocutory  judgment  the 
costs  must  be  taxed  against  the  party  cast,  in  the  following  cases : 

1 .  When  in  the  opinion  of  the  Judge  the  injustice  of  the  claim  in  the 
action  or  the  exception  sustained  by  said  party  shall  have  been  evident ; 
and 

2.  When  he  shall  interpose  an  appeal,  and  the  decision  from  which 
the  appeal  was  taken  should  have  been  affirmed. 

732).  ART.  865.  When  the  proceedings  are  annulled,  the  Judge  or 
Secretary  responsible  for  the  nullity  shall  be  liable  for  the  costs. 

When  the  fault  shall  not  be  entirely  that  of  the  Judge,  as  in  the  case 
of  illegality  of  representation  in  one  of  the  parties,  which  could  have 
been  noted  by  the  Judge,  the  latter  shall  pay  one-half  the  costs,  and 
the  person  who  has  acted  without  legitimate  representation,  the  other 
half. 

When  the  fault  is  of  one  of  the  parties  only,  as  in  the  case  of  illegality 
of  representation  which  the  Judge  shall  not  have  been  able  to  note  in  the 
process,  the  costs  shall  be  borne  only  by  the  person  who  has  acted  with- 
out legitimate  representation. 

835  to  838. 

733) .  ART.  866.  The  costs  shall  always  be  taxed  by  experts  appointed 
one  by  each  party,  and  the  third,  to  provide  for  disagreement,  by  the 
Judge  or  Justice. 

The  taxation,  approved  by  the  respective  Judge  or  Tribunal,  may 
serve  as  ground  for  execution  (presto,  merito  ejecuti'vo) . 

The  following  article  is  supplemental : 

734).  ART.  102  of  Law  105  of  1890.  In  interlocutory  judgments  the 
appraisal  or  regulation  of  costs  shall  be  made  in  the  judgment  itself, 
by  the  Judge  or  Justice  pronouncing  it,  who  may  commission  the  Secre- 
tary to  make  such  appraisal  within  the  term  which  he  may  designate. 
The  appraisal  of  costs,  made  by  the  Secretary,  requires  the  approval  of 
the  Judge  or  Justice  who  ordered  it. 

735).  ART.  867.  In  every  appraisal  of  costs  shall  be  computed:  the 
value  of  the  petitions  presented  by  the. party  favored,  the  paper  he  may 
have  used,  the  postage  and  judicial  expenses  he  may  have  incurred 
in  accordance  with  Title  VIII  of  Book  I. 


134 

The  oral  arguments  or  briefs  (alegatos)  shall  be  estimated  by  their 
author  and  regulated  by  the  respective  Judge  or  Tribunal,  if  the  apprai- 
sal should  be  considered  excessive. 

Subrogated  by  the  following  article : 

736).  ART.  37  of  Law  100  of  1892.  In  every  appraisal  of  costs  there 
shall  be  computed  and  charged  to  the  person  cast  in  the  instance,  appeal 
or  incident : 

1.  Postage  fees. 

2.  The  stamped  paper  which  may  have  been  employed  in  the  pro- 
ceedings. 

3.  The  witness  and  expert  fees. 

4.  The  work  of  the  party  or  of  his  attorney,  computed  at  the  rate  of 
two  pesos  per  day  for  every  working  day,  and  deducting  the  delays  not 
chargeable  to  the  party  cast ;  and 

5 .  The  other  cases  (costs)  which  by  the  nature  of  the  matter  or  the  evi- 
dence adduced  the  party  favored  may  have  been  obliged  to  incur. 

In  actions  of  lesser  import  these  costs  shall  be  reduced  to  one-half 
with  regard  to  the  amount  fixed  for  the  work  of  the  party  or  his  attorney. 

Subrogated  by  article  1 8  of  Law  1 69  of  1 896,  and  expressly  repealed 
by  article  69  of  the  said  Law. 

The  ten  articles  which  follow  are  additional : 

737).  ART.  103  of  Law  105  of  1890.*  The  defendant,  in  any  ordinary 
action  and  in  those  which  are  converted  into  ordinary,  has  the  right  to 
demand  that  the  plaintiff  furnish  a  surety  to  answer  for  the  amount  of 
costs  which  may  be  taxed  against  said  plaintiff.  The  surety  must  be  a 
person  capable  of  obligating  himself  as  such;  he  must  own  sufficient 
property  in  order  to  be  able  to  recover  on  the  bond,  and  must  be  domi- 
ciled in  the  same  Judicial  district.  In  order  to  qualify  the  sufficiency 
of  the  property  of  the  surety,  the  provisions  of  article  2376  of  the  Civil 
Code  shall  be  observed. 

739  to  742,  994  second  par. 

738).  ART.  1 04  of  Law  105  of  1890.  In  the  order  of  the  Judge  direct- 
ing the  furnishing  of  surety  he  shall  fix  according  to  his  discretion,  the 
amount  to  which  the  surety  is  to  be  liable,  taking  the  following  into 
consideration:  if  the  amount  involved  in  the  matter  should  be  from 
fifty  to  five  hundred  pesos,  that  of  the  surety  shall  be  from  twenty-five 
to  a  hundred  pesos ;  if  the  amount  should  be  of  five  hundred  pesos 
or  more  the  amount  of  the  bond  shall  be  from  a  hundred  to  five  hundred 
pesos. 

In  affairs  in  which  the  amount  involved  is  less  than  one  hundred  pesos, 


*  Supplemented  by  articles  19  and  20  of  Law  169  of  1896. 


135 

and  in  those  in  which  no  amount  can  he  fixed  by  reason  of  their  nature, 
such  as  those  relating  to  divorce  or  the  annulment  of  a  marriage,  the 
civil  status  of  persons,  etc.,  there  is  no  obligation  to  furnish  a  bond  for 
costs. 

746. 

739).  ART.  105  of  Law  105  of  1890.  The  plaintiff  may,  instead  of 
furnishing  a  surety  deposit  the  amount  which  the  Judge  may  have  fixed 
in  accordance  with  the  provisions  of  the  preceding  article .  Said  amount 
shall  be  deposited,  at  the  option  of  the  Judge,  either  in  an  institution  of 
credit,  if  there  should  be  in  the  seat  of  the  Circuit,  or  with  a  person  resid- 
ing in  the  place  where  the  proceedings  are  being  held,  under  the  lia- 
bility of  the  Judge,  in  the  event  that  such  institution  or  person  should 
not  be  of  well  known  financial  standing.  The  person  designated  by  the 
Judge  is  obliged  to  accept  the  deposit,  unless  there  should  exist  or 
there  should  later  occur  a  grave  objection  which  the  Judge  shall  find 
good  and  sufficient. 

740).  ART.  106  of  Law  105  of  1890.*  If  within  the  term  fixed  by  the 
Judge,  which  cannot  exceed  thirty  nor  be  under  ten  days,  the  plain- 
tiff should  not  furnish  the  surety  for  costs  or  should  not  deposit  the 
amount  fixed  by  the  Judge,  it  shall  be  presumed  that  he  has  tempo- 
rarily desisted  from  the  suit,  not  being  permitted,  consequently,  to  insti- 
tute a  new  one  based  upon  the  same  cause  of  action  for  two  years,  from 
the  date  of  the  ruling  declaring  the  desistance. 

The  Judge  shall  state,  in  the  order  directing  the  furnishing  of  bond, 
that  if  it  be  not  furnished  within  the  time  fixed,  the  desistance  shall  be 
presumed  as  of  right. 

If  at  the  proper  time  a  new  suit  between  the  same  parties  and  upon 
the  same  right  of  action  should  be  instituted,  and  it  should  become 
necessary  to  decree  the  desistance  for  the  same  cause  as  that  referred  to 
in  this  article,  such  desistance  shall  not  be  considered  as  temporary,  but 
absolute,  the  right  of  action  being  thereby  extinguished. 

The  decree  of  temporary  desistance  produces  the  effect  of  the  pre- 
scription of  the  right  of  action  not  being  considered  as  interrupted  by 
the  suit. 

319,  327  and  citations,  308,  683. 

741).  ART  107  of  Law  105  of  1890.  When  the  bond  should  not  have 
been  required  in  the  first  instance,  it  cannot  be  required  in  the  second 
if  the  defendant  only  should  have  appealed  from  the  judgment. 

742).  ART.  108  of  Law  105  of  1890.     A  person  who  makes  himself  a 

*  Amended  by  article  19  of  Law  169  of  1896.  Neither  the  Nation  nor  the  Depart- 
ments or  Municipalities  are  obliged  to  give  bond. 


136 

party  to  a  suit,  either  by  joining  the  plaintiff  or  intervening  otherwise, 
must  also  furnish  surety  for  the  costs  if  any  of  the  parties  in  the  suit 
should  so  require.  If  the  surety  should  not  be  furnished  within  the 
term  fixed  by  the  Judge  according  to  article  106,*  the  intervention  of 
said  intervenor  or  interpleader  shall  be  absolutely  ignored ;  but  the  bond 
may  be  constituted  later,  and  if  this  should  be  done  the  petitions  origi- 
nally made  by  the  intervenor  or  interpleader  shall  be  considered  as 
made  on  the  day  such  surety  may  be  furnished. 

743).  ART.  109  of  Law  105  of  1890.  If  the  defendant  against  whom 
a  suit  is  brought  upon  the  ownership  of  an  immovable,  shall  establish 
that  he  possesses  it  by  virtue  of  a  registered  title,  and  the  Judge  should 
consider  the  latter  sufficient,  he  shall  not  order  the  inscription  made 
which  article  42  of  Law  57  of  1887  prescribes  until  the  plaintiff  shall 
furnish  bond  for  costs,  if  the  defendant  should  require  it  before  making 
answer  to  the  complaint;  if  the  inscription  shall  already  have  been 
ordered,  the  Judge  shall  direct  that  it  be  not  made  or  that  it  be  cancelled 
if  already  made ;  but  a  new  order  shall  be  issued  as  soon  as  the  surety 
is  furnished. 

744).  ART.  1 10  of  Law  105  of  1890.  The  plaintiff  may,  in  the  com- 
plaint itself,  offer  surety  in  advance  for  the  costs,  or  petition  that  the 
Judge  fix  the  equivalent  amount.  After  the  surety  shall  have  been 
furnished  or  the  deposit  made,  the  complaint  shall  be  referred  to  the 
defendant,  and  the  provisions  of  the  preceding  article  shall  not  apply. 

If  the  plaintiff  should  be  suing  in  forma  pauperis,  he  shall  not  furnish 
surety  for  the  costs ;  but  if  the  defendant  should  possess  the  thing  in- 
volved in  the  suit,  under  a  registered  title,  the  Judge  shall  not  order  the 
record  referred  to  in  the  said  article  42  of  Law  57  of  1887  to  be  made,  if 
in  his  opinion  said  title  should  be  sufficient;  if  he  shall  already  have, 
ordered  it,  he  shall  direct  that  it  be  not  made,  or  that  it  be  cancelled  if 
already  made.  Consequently,  in  this  case  and  for  the  purposes  of  article 
1521  of  the  Civil  Code,  the  immovable  claimed  shall  not  be  considered  in 
litigation;  but  if  judgment  should  be  rendered  in  first  instance  for  the 
plaintiff,  the  record  prescribed  by  the  aforesaid  article  42  shall  be  ordered 
in  the  judgment,  which  order  shall  be  communicated  to  the  Registrar 
on  the  same  day  the  judgment  is  published.  From  the  date  of  the 
record,  it  shall  be  understood  that  the  immovable  the  subject  of  the  suit 
is  in  litigation. 

745).  ART.  in  of  Law  105  of  1890.  In  order  to  establish  the  suffi- 
ciency of  a  registered  title,  in  all  cases  in  which  this  Law  speaks  of  titles. 
of  this  character,  the  title  itself  shall  be  exhibited,  which  shall  be  thai 
which  the  law  requires,  according  to  the  case,  and  which  must  bear  the 
proper  memorandum  registration.  In  addition,  a  certificate  issued  by 
the  respective  Registrar  of  Public  Instruments  shall  be  presented,  show- 

*  Ordinal  740. 


137 

ing:  i.  That  the  record  of  the  title — which  record  and  title  shall  be 
designated  by  their  numbers  and  dates — has  not  been  cancelled  by  any 
of  the  three  means  mentioned  in  article  789  of  the  Civil  Code;  and  2. 
That  the  records  prior  to  the  present  one,  covering  a  period  of  ten  years, 
have  been  cancelled  in  accordance  with  the  said  article,  up  to  the  present 
record.  If  there  should  have  been  no  record  during  this  time,  it  must  be 
established  that  the  record  which  has  been  cancelled  by  the  present  one 
precedes  the  latter  by  ten  years  at  least ;  if  this  should  not  be  established 
by  reason  of  there  not  being  any  record  cancelled  in  a  period  of  twenty 
years,  it  shall  be  sufficient  that  the  date  of  the  instrument  presented  be 
twenty  years  old,  with  relation  to  the  moment  it  is  exhibited. 

746) .  ART.  1 1 2  of  Law  105  of  1 890.  The  bond  for  costs  is  constituted 
by  an  entry  (diligencia)  embodied  in  the  record,  in  which  shall  be  stated 
the  amount  fixed  by  the  Judge  for  the  liability  of  the  surety,  which 
entry  shall  be  signed  by  the  Judge,  the  surety  and  the  Secretary.  With 
a  copy  of  said  record  of  bond,  of  the  taxation  of  the  costs  and  the  decree 
approving  the  latter,  which  shall  be  subscribed  by  the  officials  aforesaid 
execution  may  issue  against  the  surety  to  the  amount  for  which  he  made 
himself  liable,  if  the  taxation  of  costs  should  amount  thereto. 


138 

TITLE  VI. 

FIRST  AND  LAST  CHAPTER. 
Execution   of  Judgments. 

747).  ART.  868.  The  execution  of  a  judgment  pertains  to  the  Judge 
who  pronounced  it  in  first  instance.  In  case  the  action  should  have  had 
one  instance  only,  or  that  the  judgment  must  be  executed  notwithstand- 
ing the  appeal,  its  execution  pertains  to  the  Judge  or  Tribunal  who  ren- 
dered it,  who  shall  proceed  in  person  or  through  a  commissioner,  in  a 
proper  case. 

761. 

The  following  article  is  supplemental : 

748).  ART.  113  of  Law  105  of  1890.  Definitive  judgments  in  a  civil 
action,  which  have  become  final,  must  be  executed  even  though  an 
action  for  annulment  thereof  has  been  or  might  be  instituted. 

75i- 

749).  ART.  869.  The  net  sum  which  is  caused  to  be  owed  by  a  judg- 
ment, either  for  the  principal  value  only,  or  for  the  latter  and  the  acces- 
ories,  such  as  costs,  fruits,  interests,  etc.,  must  be  paid  within  six  days 
after  service  of  notice  of  the  judgment,  and  the  recovery  may  be  made 
by  executory  process  in  case  of  delay. 

754- 

750).  ART.  870.  When  the  obligation  to  deliver  a  thing  or  to  perform 
some  act  should  result  from  a  judgment,  it  must  be  fulfilled  within 
three  days  after  service  of  notice  of  the  judgment,  if  no  other  term  shall 
have  been  fixed,  and  executory  process  also  lies  in  case  of  delay  or  resis- 
tance on  the  part  of  the  person  obligated. 

754- 

Supplemented  and  amended  by  the  following  article. 

751).  ART.  1 14  of  Law  105  of  1890.  When  the  obligation  to  deliver 
real  property  shall  result  from  said  judgments,  and  the  delivery  should 
not  be  effected  within  three  days  after  notice  of  the  judgment,  the  Judge 
shall  proceed  to  deliver  the  thing,  availing  himself  of  force,  if  necessary 

In  the  case  of  this  article,  no  opposition  whatsoever  shall  be  allowed 
from  the  persons  prejudiced  by  the  judgment,  in  accordance  with  articU-s 


139 

846  et  seq.,  of  Title  IV,  Book  2  of  the  Judicial  Code,  nor  from  those  in- 
cluded in  the  last  case  of  article  87  1  of  the  said  Code.* 

710,752,753,756,1055,  1130. 

752).  ART.  871.  When  in  fulfillment  of  a  judgment  execution  should 
issue  for  the  delivery  of  a  thing,  neither  those  who  may  have  litigated, 
nor  their  heirs  or  legatees,  can  intervene  therein  as  such,  nor  those  who 
may  have  acquired  the  thing  by  alienation  from  the  person  defeated  in 
the  suit,  after  notice  of  the  reference  of  the  complaint  shall  have 
been  served. 


753).  ART.  872.  If  the  judgment  should  declare  in  favor  of  anyone 
the  possession  of  a  thing,  the  Judge  shall  execute  it  by  directing  the 
delivery  of  the  thing,  with  a  citation  of  the  adjoining  owners  and  the 
other  persons  interested,  without  having  recourse  to  ejection,  and  if  at 
the  time  of  the  delivery  any  person  should  oppose  it,  he  shall  be  directed 
to  submit  his  objection  in  writing  within  nine  days. 

If  no  one  should  object,  or  if  the  person  objecting  should  not  prepare 
his  objection  within  the  term  indicated,  the  delivery  shall  be  carried  out 
by  causing  those  occupying  it  to  disoccupy  it,  making  use  of  force  if 
necessary  ;  but  if  the  opposition  should  be  submitted  in  the  time  granted 
for  the  purpose,  it  shall  be  referred  to  the  other  party,  and  after  an 
answer  being  made  an  ordinary  action  shall  be  prosecuted. 


754).  ART.  873.  If  the  judgment  should  adjudge  a  person  to  not  do 
something,  it  shall  be  executed  by  directing  the  party  obligated  to 
abstain  from  doing  that  which  is  forbidden  in  the  judgment,  with  an 
admonition  that  in  the  event  of  his  disobedience  he  will  be  obliged  to 
pay  the  damages  which  may  be  caused,  without  prejudice  to  the  crimi- 
nal action  which  may  lie. 

755).  ART.  874.  If  the  judgment  should  order  the  payment  of  an  un- 
liquidated amount  for  fruits,  the  indemnity  of  loss  and  damage,  or  any- 
thing similar,  it  shall  be  executed,  after  ordinary  proceedings  for  an 
accounting  (juicio  ordinario  decuentas),  in  which  shall  not  be  discussed 
the  obligation  of  paying,  but  the  amount  to  be  paid  under  the  first 
judgment,  and  according  to  the  bases  which  may  have  been  estab- 
lished therein. 

704. 
*  The  judgments  referred  to  are  those  specified  in  ordinal  article  748. 


140 

756).  ART.  875.  In  the  case  of  article  872  no  persons  who  are  not 
allowed  to  intervene,  in  accordance  with  article  871,  shall  be  permitted 
to  make  objection,  therefore  he  who  makes  the  objection  must  at  least 
attach' the  summary  evidence  that  he  is  the  owner  of  the  thing,  without 
which  requisite  he  shall  not  be  permitted  to  object. 

75i- 

757).  ART.  876.  Judgments  rendered  in  foreign  countries  shall  have 
in  Colombia  the  force  established  by  the  respective  treaties  of  the  Gov- 
ernments of  said  countries  with  that  of  this  Republic.  If  there  should 
not  be  any  special  treaties  with  the  Nation  in  which  the  judgment  whose 
execution  is  in  question  was  rendered,  such  judgment  shall  have  in 
Colombia  the  same  force  as  is  given  the  judgments  of  the  Colombian 
tribunals  in  said  Nation. 

759- 

758) .  ART.  877.  If  the  final  judgment  should  emanate  from  a  country 
in  which  the  decisions  of  the  Colombian  tribunals  are  not  executed,  it 
shall  have  no  force  whatsoever  in  Colombia. 

The  burden  of  proving  the  circumstances  referred  to  in  this  article 
by  way  of  exception  rests  upon  the  defendant. 

762, 763. 

759) .  ART.  878.  If  the  judgment  be  of  those  which  must  be  executed 
in  Colombia,  it  shall  so  be  if  the  following  conditions  be  attendant :  i . 
That  it  has  been  rendered  as  a  consequence  of  the  exercise  of  a  personal 
right  of  action;  2.  That  said  right  of  action  and  its  correlative  obliga- 
tion be  legal  in  Colombia;  and  3.  That  the  execution  be  vested  with 
the  legal  requisites  necessary  in  the  Nation  in  which  it  may  have  been 
rendered,  and  that,  furthermore,  it  be  authenticated  as  provided  in 
article  337*  with  respect  to  powers  of  attorney. 

577. 

760).  ART.  879.  The  legality  and  the  force  of  judgments  rendered  in 
a  foreign  country  is  established  by  a  certificate  issued  by  the  diplomatic 
or  consular  agent  of  Colombia  or  of  a  friendly  nation,  stating:  i .  That 
the  judgment  has  been  rendered  in  accordance  with  the  laws  of  said 
country;  and  2.  That  said  laws  provide  no  remedy  to  the  person  or 
persons  upon  whom  are  imposed  the  obligations  contained  therein. 

If  there  should  be  no  consular  nor  diplomatic  agent  of  Colombia,  nor 
of  any  nation  friendly  to  the  latter  in  the  country  from  which  the  judg- 
ment the  execution  of  which  is  in  question  emanated,  the  certificate  re- 

*  Ordinal  104. 


f  erred  to  in  this  article  may  be  requested  of  the  Minister  or  Secretary  of 
Foreign  Affairs  of  said  country,  through  the  same  Secretary  of  the 
Colombian  Union. 

-  761).  ART.  880.  The  execution  of  the  judgments  rendered  in  foreign 
countries  shall  be  requested  of  the  National  Judge  of  first  instance  who 
may  be  competent  to  take  cognizance  of  the  suit  which  may  be  brought 
against  the  person  against  whom  the  judgment  was  rendered  whose 
execution  is  in  question. 

762).  ART.  88 1.  The  Judge,  after  the  translation  of  the  judgment  in 
legal  form,  and  after  having  heard  the  party  against  whom  it  may  be 
rendered,  and  the  respective  agent  of  the  Department  of  Public  Prosecu- 
tion, shall  declare  that  the  judgment  is  to  be  executed,  if  all  the  parties 
should  agree  thereto. 

758  second  par.,  763. 

763).  ART.  882.  If  the  defendant  or  the  agent  of  the  Department  of 
Public  Prosecution  should  oppose  the  execution  of  the  judgment, 
basing  his  opposition  upon  facts  which  it  may  be  necessary  to  prove,  the 
Judge  shall  take  evidence  on  the  matter  for  a  common  period  of  thirty 
days,  upon  the  expiration  of  which,  after  hearing  the  parties  to  each  of 
whom  the  case  shall  be  referred  for  three  days,  the  Judge  shall  decide 
within  eight  days  whether  the  judgment  should  or  should  not  be 
executed. 

The  decision  of  the  Judge  may  be  appealed  from  in  both  effects,  and 
the  Federal  Supreme  Court  shall  hear  and  decide  the  appeal,  as  that 
from  an  interlocutory  judgment. 

757  to  760. 

764).  ART.  883.  The  execution  of  the  judgment  having  been  defi- 
nitely denied,  it  shall  be  returned  to  the  person  who  may  have  presented 
it ;  but  if  it  should  be  decreed  that  it  can  be  executed,  it  shall  be  so  exe- 
cuted in  accordance  with  the  laws  of  Colombia. 

765).  ART.  884.  If  the  Nation  should  be  adjudged  to  give  pay  or  do 
something,  the  Judge  to  whom  the  execution  of  the  judgment  may  per- 
tain, shall  transmit  a  copy  thereof,  through  the  regular  channels,  to  the 
Federal  Executive  Power  in  order  that  its  execution  may  be  proceeded 
with,  if  it  should  be  within  its  powers,  or  otherwise,  that  as  soon  as 
possible  steps  be  taken  before  .Congress  for  the  enactment  of  a  legisla- 
tive Act  providing  for  the  execution  of  the  judgment.  Execution  can- 
not, consequently,  issue  against  the  Nation. 

The  provision  of  this  article  must  be  understood  without  prejudice 
to  the  provision  in  special  cases  as  to  the  manner  of  executing  judgments 
rendered  against  the  Nation.* 


*  See  ordinal  article  730,  which  should  have  been  inserted  here. 


142 


TITLE  VII. 

Appeals  and   Writs   of  Certiorari    (Apelaeioues    y    Recursos  de 

Hccho). 

CHAPTER  I. 

Appeals. 

766).  ART.  885.  The  party  believing  himself  aggrieved  by  the  judg- 
ment of  a  Judge,  whether  such  judgment  be  definitive  or  interlocutory, 
or  that  an  irreparable  damage  is  produced  by  the  definitive  judgment, 
has  the  right  to  appeal  therefrom  verbally  at  the  act  of  the  service  of 
notice,  or  in  writing,  within  seventy- two  hours  after  the  notification,  if 
the  judgment  were  a  definitive  one;  or  forty-eight  hours,  if  it  were  an 
interlocutory  judgment. 

513,  768,  776,  588.     Law  169  of  1896,  article  15. 

767).  ART.  886.  Orders  of  mere  practice,  even  though  they  cause  an 
irreparable  damage,  may  be  appealed  from  only  in  a  devolutive  effect, 
with  the  exception  of  the  following,  which  may  be  appealed  from  in 
both  effects. 

1 .  Orders  rejecting  evidence  of  any  character  whatsoever,  if  the  taking 
thereof  shall  have  been  requested  within  the  term  prescribed  therefor; 
and 

2.  Orders  denying  the  taking  of  evidence  in  a  cause,  or  the  extension 
of  the  term  granted. 

769,  770. 

The  following  article  is  supplemental : 

768).  ART.  1 17  of  Law  105  of  1890.  A  ruling  denying  the  revocation 
of  one  from  which  an  appeal  was  not  interposed  in  due  time,  cannot  be 
appealed  from,  unless  the  second  ruling  should  contain  a  decision  on  a 
point  not  embodied  in  the  first  one.  In  such  case  the  appeal  shall  lie 
with  regard  to  said  new  point  only. 

513,  776,  773- 

SEVENTEENTH  AMENDMENT. 
(Of  Law  46  0/1876.) 

769).  ART.  887.  The  appeal  from  orders  or  mere  practice  must  be 
interposed  within  forty-eight  hours  after  notice  is  served  or  becomes 
effective. 


143 

770).  ART.  888.  The  decisions  mentioned  in  article  885  may  be  ap- 
pealed from  in  a  suspensive  effect,  which  means  that  the  execution 
thereof  and  the  progress  of  the  cause  must  be  suspended  until  the  appeal 
may  be  decided  by  the  superior. 

This  provision  is  understood  to  be  without  prejudice  to  the  express 
provisions  in  special  cases. 

779- 

The  following  article  is  supplemental : 

771).  ART.  118  of  Law  105  of  1890.  In  matters  of  voluntary  juris- 
diction appeals  shall  be  granted  in  the  effect  designated  by  the  appellant. 

772).  ART.  889.  An  appeal  may  be  interposed  from  the  entire  decision 
or  ruling,  or  from  one  or  more  parts  thereof  only.  The  co-litigant  has 
the  right  to  join  the  appeal  in  so  far  as  he  may  be  prejudiced  by  the 
decision  or  judgment,  and  he  must  do  so  within  the  same  term  that  is 
granted  him  to  appeal. 

Expressly  repealed  by  article  87  of  Law  100  of  1892,  and  subrogated 
by  the  following : 

773).  ART.  34  of  Law  100  of  1892.  An  appeal  may  be  interposed 
from  an  entire  decision  or  judgment,  or  from  one  or  more  of  its  parts. 
The  co-litigant  has  the  right  to  join  the  appeal  in  so  far  as  he  may  be 
prejudiced  by  the  decision  or  judgment,  and  he  must  do  so  within  the 
same  term  that  is  granted  him  to  appeal. 

513,  768,  776,   1465. 


EIGHTEENTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

774).  ART.  890.  Those  who  may  be  prejudiced  by  a  definitive  judg- 
ment, according  to  the  provisions  contained  in  the  Chapter  on  "De- 
cisions and  Judgments"  even  though  they  may  not  have  been  parties  to 
the  suit  have  the  right  to  appeal  within  forty-eight  hours  after  the  time 
they  had  knowledge  of  the  injury  which  may  have  been  committed 
against  them,  without  prejudice  to  the  action  for  nullity  against  the 
decision  or  judgment  which  affects  them  rendered  without  their  having 
been  summoned  in  legal  form.  But  if  the  judgment  should  be  in  the  last 
instance,  they  cannot  make  use  of  the  right  of  appeal. 

710. 

775).  ART.  891.  The  Judge,  within  twenty-four  hours  after  the  appeal 
may  have  been  interposed,  shall  grant  it  in  view  of  the  proceedings  had, 


144 

without  referring  it  to  the  opposite  party,  if  an  appeal  was  taken  in 
time,  and  shall  direct  that,  after  the  citation  of  the  parties,  the  record 
be  transmitted  to  the  superior,  on  or  before  the  second  day,  if  the  supe- 
rior and  the  inferior  should  be  in  the  same  place;  or  by  the  next  mail, 
if  they  should  be  in  different  places ;  there  shall  be  retained  in  either 
case,  a  legalized  copy  of  the  decision  or  judgment,  with  a  memoran- 
dum thereon  of  the  fact  of  an  appeal  having  been  taken  therefrom. 

779,  780,  781. 

The  three  articles  which  follow  are  amendatory  and  supplemental : 
776).  ART.  119  of  Law  105  of  1890.  When  a  party  should  be  ad- 
judged to  pay  the  costs  by  a  final  judgment,  and  said  party  should  inter- 
pose an  appeal  or  apply  for  a  writ  of  certiorari,  against  a  new  decision 
of  the  Judge,  without  having  paid  the  costs,  the  latter  shall  direct  that 
said  party  be  called  on  to  make  such  payment.  If  five  days  should 
elapse  after  service  of  the  order  directing  the  demand  for  payment, 
without  the  party  making  the  payment  of  the  costs,  the  Judge  shall 
deny  the  appeal  interposed.  From  this  last  decision  there  is  no 
remedy  but  a  complaint. 

777- 

777).  ART.  102  of  Law  105  of  1890.  If  the  Judge  should  grant  one  of 
the  remedies  referred  to  in  the  preceding  article,  without  the  appellant 
having  paid  the  costs,  the  superior  judge  shall  abstain  from  taking  cogni- 
zance of  the  matter  on  the  petition  of  the  opposite  party,  and  shall  order 
that  the  proceedings  be  returned  to  the  inferior  court,  without  preju- 
dice to  taking  the  proper  steps  for  the  purpose  of  enforcing  the  liability 
which  the  Judge  may  have  incurred. 

778.     , 

778).  ART.  121  of  Law  105  of  1890.  In  order  that  the  two  preceding 
articles  may  be  applicable,  it  is  necessary  that  the  costs  shall  have  been 
taxed,  that  an  order  approving  the  taxation  shall  have  been  made,  and 
that  the  parties  shall  have  been  notified  of  the  latter. 

779).  ART.  892.  In  the  event  of  an  appeal  being  granted  in  a  devo- 
lutive  effect,  a  copy  of  what  may  be  necessary  shall  be  transmitted  to 
the  superior,  which  copy  shall  be  made  at  the  cost  of  the  appellant  with- 
in the  term  which  the  Judge  shall  designate;  such  term  is  not  subject 
to  extension. 

The  devolutive  effect  consists  in  not  suspending  by  virtue  of  the  appeal 
either  course  of  the  action  or  the  execution  of  the  decision  or  judgment 
appealed  from,  so  that  in  this  case  the  jurisdiction  of  the  inferior  judge 
is  not  suspended,  as  is  the  case  when  an  appeal  is  granted  in  a  sus- 
pensive effect. 


145 

The  first  part  of  this  article  has  been  subrogated  by  the  following 
article,  which  is  also  supplementary: 

780).  ART.  1 15  of  Law  105  of  1890.  In  the  event  of  an  appeal  being 
granted  in  a  devolutive  effect,  the  original  of  the  pertinent  part  of  the 
process  shall  be  transmitted  to  the  superior;  a  copy  of  what  may  be 
absolutely  necessary  for  the  continuation  of  the  action  before  the  inferior 
court  shall  be  made  at  the  cost  of  the  appellant  and  left  with  him.  This 
copy  must  be  made  and  compared  (compulsada)  within  the  term 
which  the  Judge  may  designate  and  which  he  may  extend  for  a  just  cause 
pleaded  before  the  expiration  of  such  term.  If  the  copy  should  not  be 
made  and  compared  through  the  fault  of  the  appellant,  the  Judge  on 
the  petition  of  the  opposite  party  or  on  a  report  from  the  Secretary,  who 
is  obliged  to  make  such  report  ex  proprio  motu,  shall  declare  the  appeal 
to  be  abandoned. 

If  the  superior,  for  the  purpose  of  rendering  a  decision,  believes  another 
portion  of  the  record  to  be  necessary,  he  may  demand  it ;  and  the  Judge 
shall  forward  it,  making  first  a  true  copy  of  what  may  be  necessary  for 
the  purpose  of  continuing  the  action. 

770,  779,  775- 

The  two  articles  which  follow  are  additional : 

781).  ART.  1 1 6  of  Law  105  of  1890.  An  appeal  having  been  granted 
in  a  suspensive  effect,  no  copy  shall  be  made  of  what  may  be  pertinent 
for  the  purpose  of  realizing  those  granted  to  either  of  the  parties  in  the 
devolutive  effect;  this  is  without  prejudice  to  the  continuation  of  the 
appeals  for  which  the  proper  copies  have  already  been  made  and  trans- 
mitted to  the  superior  court. 

The  Justice  who  is  to  take  cognizance  of  the  decision  from  which  an 
appeal  has  been  granted  in  a  suspensive  effect,  shall  also  take  cognizance 
of  the  other  decision  from  which  an  appeal  in  a  devolutive  effect  may 
have  been  granted,  if  they  appear  in  the  same  case  and  are  not  included 
in  the  case  provided  for  in  the  last  part  of  the  preceding  paragraph.  The 
Justice  shall  render  a  decision  on  the  said  decisions  within  a  common 
term. 

782).  ART.  1 22  of  Law  105  of  1890.  Upon  the  receipt  by  a  Tribunal  of 
a  Judicial  District,  or  by  a  Circuit  Judge,  of  the  papers  in  a  case  for- 
warded to  him  on  appeal  from  a  definitive  judgment  or  a  ruling,  if  thirty 
days  should  elapse  after  the  date  of  the  receipt  of  the  process  and  the 
parties  should  not  consign  the  paper  necessary  for  the  purpose  of  con- 
tinuing the  cause,  or  should  fail  to  take  the  steps  necessary  for  the  pur- 
pose, the  judgment  or  ruling  appealed  from  shall  be  declared  final  by  the 
Justice  or  Justices  taking  cognizance  of  the  appeal,  or  by  the  Circuit 
Judge  who  is  to  render  definitive  judgment  on  the  remedy  interposed, 
without  the  necessity  of  a  petition  by  a  party.  This  final  judgment 
shall  not  prejudice  the  parties  who  may  have  performed  their  duties. 


146 

The  provisions  of  the  preceding  paragraph  are  made  to  extend  to  the 
Supreme  Court  with  regard  to  ordinary  appeals  and  appeals  for  annul- 
ment of  judgment  (casacion)  excepting  with  relation  to  the  term  fixed 
therein,  as  the  latter  shall  be  sixty  days  from  the  date  of  the  receipt  of 
the  process  by  the  Court. 

303,  306,  308,  319,  683. 

783).  ART.  893.  The  method  of  procedure  in  the  Superior  Court,  in 
cases  of  appeals  from  definitive  judgments,  shall  be  that  prescribed 
in  each  action.  If  interlocutory  judgments  are  in  question,  or  a  case 
not  especially  provided  for  in  this  Code,  the  Superior  Court  shall  conform 
to  the  provisions  contained  in  the  following  articles. 

784).  ART.  894.  The  Justice  whose  turn  it  may  be  to  hear  and  decide 
an  appeal  from  an  interlocutory  judgment,  shall  immediately  refer  it 
to  the  Attorney  General  of  the  Nation,  who  shall  make  a  report  thereon 
within  three  days ;  after  such  report  shall  have  been  made,  the  said  Jus- 
tice shall  direct  that  the  matter  be  held  in  abeyance  for  four  days,  in 
order  that  within  this  term  the  parties  may  file  their  written  arguments. 
Upon  the  expiration  of  the  last-named  term,  the  Court  shall  decide  the 
appeal  within  the  next  four  days,  in  view  of  the  proceedings  had. 

785).  ART.  895.  The  appeal  having  been  decided,  the  parties  shall 
immediately  be  notified  by  means  of  an  edict,  which  shall  be  posted  in 
the  office  of  the  Secretary  for  twenty-four  hours,  and  upon  the  expiration 
of  the  legal  term  required  for  the  decision  to  be  considered  final,  the 
papers  in  the  case  shall  without  delay  be  returned  to  the  inferior  judge, 
a  copy  of  the  decision  of  the  superior  being  retained  in  the  respective 
book. 

786).  ART.  896.  Upon  receipt  of  the  record  by  the  inferior  court,  the 
Judge  shall  issue  the  proper  decree  of  obedience  and  fulfillment  of  the 
superior  resolution,  notice  of  which  shall  be  served  on  the  parties. 

787).  ART.  897.  In  every  case  of  appeal,  save  those  expressly  excepted 
by  the  law,  there  shall  be  returned  to  the  inferior  court,  after  decision 
shall  have  been  rendered  thereon,  not  only  the  proceedings  had  by  him 
at  first  instance,  but  also  those  had  at  the  second  instance,  there  being 
always  retained  in  the  superior  court  a  copy  of  the  decision  it  may  have 
handed  down. 

CHAPTER  II. 
Writs  of  Certiorari  (Recursos  de  hecho). 

788).  ART.  898.  Whenever  an  appeal  shall  be  denied  in  any  judicial 
proceeding,  the  aggrie/ed  party  may  apply  for  a  writ  of  certiorari  (re- 
currir  de  hecho)  to  the  superior,  in  order  that  it  may  be  granted  and  de- 
cided, if  it  should  be  legal. 
798. 


147 

789).  ART.  899.  The  party  desirous  of  applying  for  a  writ  of  certiorari 
shall  request  the  Judge  who  denied  the  appeal,  within  twenty-four  hours 
after  service  of  the  notice  of  denial,  a  duly  authenticated  copy  of  the  de- 
cision appealed  from,  of  the  return  of  its  service,  of  the  petition  interpos- 
ing the  appeal,  and  of  the  decision  which  denied  it. 

He  must  also  demand  a  copy,  if  necessary,  of  any  document,  order  or 
proceeding  which  may  serve  to  judge  the  legality  of  the  denial  of  the 
appeal. 

792,  794,  799. 

790) .  ART.  900.  The  Secretary  shall  place  on  the  copies  a  memoran- 
dum of  the  date  of  their  issue  and  delivery  to  the  party,  and  the  latter 
must  apply  to  the  superior  court  within  three  days,  in  addition  to  the 
time  required  to  cover  the  distance. 

793,  795,  1601. 

791).  ART.  901.  An  application  for  a  writ  of  certiorari  does  not  sus- 
pend the  execution  of  the  decision  involved,  nor  the  continuation  of  the 
proceedings  before  the  inferior  court,  until  the  original  record  is  called 
for  by  the  superior  court,  by  virtue  of  the  admission  of  the  remedy  in  * 
suspensive  effect. 

801. 

792).  ART.  902.  The  party  desirous  of  applying  for  a  writ  of  certio- 
rari from  a  superior  court,  shall  do  so  in  writing,  transmitting  the  copies 
referred  to  in  article  899. 

793).  ART.  903.  The  Secretary  of  the  Superior  Tribunal  shall  make  a 
note  on  the  petition  of  the  day  and  hour  of  its  delivery  and  shall  place 
it  before  the  court. 

794) .  ART.  904.  After  the  assignment  of  the  case,  the  justice  who  is  to 
take  cognizance  thereof  shall  set  a  day  within  the  next  five  days  for  the 
parties  to  present  written  or  verbal  arguments,  and  three  days  after 
that  set  for  the  hearing,  the  court  shall  decide  whether  the  writ  is  granted 
or  denied,  directing  in  the  former  event,  that  the  record  be  demanded  of 
the  inferior  court,  and  in  the  latter  case,  that  the  petition  and  the  copies 
presented  therewith  be  filed. 

The  Prefects  of  the  Territories  shall  pursue  a  similar  method  of  pro- 
cedure in  admitting  or  denying  petitions  for  writs  of  certiorari  made  to 
them. 

The  inferior  Judge  shall  transmit  the  cause  the  very  day  he  is  re- 
quested to  do  so,  if  he  should  reside  in  the  same  place  as  the  superior 
judge,  or  by  return  mail,  if  he  should  reside  elsewhere. 

795).  ART.  905.  In  order  to  grant  a  pe.tit.ion  for  a  writ  of  certiorari 
the  Court  shall  ascertain:  i.  Whether  the  decision  involved  may  be 


148 

appealed  from;  2.  If  a  timely  appeal  was  interposed;  3.  Whether  the 
application  for  the  writ  has  also  been  made  within  the  proper  time; 
and  4.  Whether  the  matter  is  of  a  national  character,  by  reason  of  the 
interest  of  the  Nation  therein. 

In  the  absence  of  any  of  the  circumstances  enumerated  herein,  the 
application  shall  be  denied. 

790,  793- 

796).  ART.  906.  If  the  Superior  Judge  should  be  of  opinion  that  he 
cannot  form  an  opinion  from  the  copies  presented,  as  to  the  legality 
with  which  the  appeal  was  denied  by  the  inferior  court,  he  may  call  for 
a  copy  of  such  other  data  as  he  may  deem  necessary. 

797).  ART.  907.  Upon  the  receipt  by  the  Superior  Tribunal  of  the 
original  process  or  of  a  copy  thereof,  according  as  to  whether  the  remedy 
shall  have  been  admitted  in  a  suspensive  effect  or  in  a  devolutive  one 
only,  the  method  of  procedure  shall  follow  the  provisions  of  the  preced- 
ing chapter,  as  if  the  appeal  had  been  granted  in  the  ordinary  form. 

798).  ART.  908.  In  the  same  decision  admitting  the  application,  the 
other  party  shall  be  ordered  summoned,  at  the  cost  of  the  appellant, 
in  order  that  within  the  term  allowed  him,  if  the  inferior  judge  should 
not  reside  in  the  same  place  as  the  superior,  or  three  days  if  he  should 
reside  in  the  same  place,  he  may  enter  an  appearance  personally  or 
through  an  attorney  in  fact  to  protect  his  rights  in  the  cause. 

799).  ART.  909.  If  a  petition  for  a  writ  of  certiorari  shall  have  been 
applied  for  against  a  court  residing  in  the  same  place  as  the  superior 
court,  and  it  should  be  allowed  only  in  a  devolutive  effect,  the  appellant 
shall  be  allowed  a  term  for  a  presentation  of  a  copy  of  the  record,  in 
order  that  he  may  continue  the  appeal  in  the  effect  granted.  Upon 
the  expiration  of  the  term  allowed  without  the  presentation  of  the  true 
copies  of  the  record,  the  appeal  shall  be  considered  to  have  been  aban- 
doned, unless  the  appellant  shall  establish  that  he  was  not  responsible 
for  the  delay. 

802,  789,  800. 

800.  ART.  910.  If  the  copies  presented  by  the  petitioner  should  be 
sufficient  for  the  purpose  of  deciding  the  appeal  granted  in  the  devolu- 
tive effect,  a  copy  of  the  proceedings  shall  not  be  necessary,  and  the  case 
shall  be  proceeded  with  without  the  same. 

789. 

80 1 ) .  ART.  911.  An  appeal  having  been  allowed  in  a  suspensive  effect 
by  virtue  of  an  application  for  a  writ  of  certiorari,  the  superior  judge 


1 49 

shall  order  the  inferior  judge  in  the  same  decree  admitting  it,  that  he 
suspend  all  proceedings  in  the  cause,  until  the  appeal  is  decided. 

791. 

802).  ART.  912.  If  the  appeal  should  have  been  granted  in  a  devolu- 
tive  effect  only,  and  the  aggrieved  party  should  so  appeal,  and  apply 
for  a  writ  of  certiorari  as  to  the  effect  denied,  the  superior  court  shall' 
examine  as  to  whether  the  appeal  should  have  been  granted  in  a  sus- 
pensive effect,  and  in  affirmative  case,  shall  admit  it  in  such  effect; 
but  otherwise  shall  deny  the  writ  and  continue  the  appeal  in  the  effect 
granted  by  the  inferior  court. 

799- 

803) .  ART.  913.  From  the  decision  of  the  superior  as  to  the  admission 
or  denial  of  the  petition  for  a  writ  of  certiorari,  there  shall  be  no  remedy 
but  a  complaint. 


150 

TITLE  VIII.* 

FIRST  AND  LAST  CHAPTER. 
Nullities. 

804).  ART.  914.  The|following  are  causes  of  nullity,  common  to  all 
judicial  proceedings. 

1 .  Lack  or  incompetency  of  jurisdiction . 

2.  Illegitimacy  or  insufficiency  of  the  representation  in  any  of  the 
parties. 

3.  The  failure  to  notify  the  parties  of  the  appointment  of  Co-judges, 
of  accountants,  of  experts  and  other  persons  who  may  be  obliged  to  take 
part  in  the  proceedings,  when  such  intervention  be  not  by  reason  of  their 
office,  or  in  the  cases  expressly  excepted  in  this  Code. 

4.  The  failure  to  personally  serve  a  notice  when  service  in  this  manner 
is  required  by  the  law ;  and 

5.  The  failure  to  render  judgment  in  the  form  prescribed  in  articles 
834  to  838. 

NINETEENTH  AMENDMENT. 
(Of  Law  46  0/1876.) 

805) .  ART.  915.  Causes  of  nullity  in  ordinary  actions  are : 

1 .  The  failure  to  legally  notify  the  defendant  of  the  complaint ;  but  if 
the  latter  should  have  made  answer  to  the  complaint,  or  should  have 
defended  himself  in  the  suit,  he  cannot  plead  this  cause  of  nullity. 

2 .  The  failure  to  take  evidence  in  the  suit  when  there  are  matters  to 
be  proved,  unless  a  question  shall  have  been  raised  hereon,  and  it  shall 
have  been  decided  that  there  was  no  occasion  to  take  evidence  in  the 
cause;  and 

3.  The  failure  to  cite  the  parties  for  judgment. 

806).  ART.  916.  The  following  are  causes  of  nullity  in  an  executory 
action : 

1 .  The  failure  to  legally  notify  the  debtor  of  the  executory  action. 

2.  The  failure  to  cite  the  execution  debtor,  or  the  person  representing 
him,  for  the  judgment  of  posting  aad  public  sale  of  property. 

3.  The  failure  to  post  the  notices  when  the  debtor  shall  not  have  re- 
nounced the  same,  for  the  sale  of  the  property  to  be  sold ;  and  the  failure 

*  All  the  articles  of  this  Title — Ordinal  Nos.  804  to  818 — were  expressly  repealed 
by  article  338  of  Law  57  of  1887,  with  the  exception  of  928.  Law  105  of  1890,  article 
338,  again  repealed  the  said  articles,  and  also  excepted  article  928  from  the  deroga- 
tion. This  Law  suhrogated  the  articles  repealed  by  ordinal  art  ides  819  to  838. 


to  hold  the  sale  in  accordance  with  the  provisions  of  article  1060  to  1066 ; 
and 

4 .  The  failure  to  admit  the  legal  exceptions  which  the  execution  debtor 
may  note,  provided  that  he  shall  have  pleaded  them  within  the  term 
mentioned  in  article  1053. 

807) .  ART.  917.  The  following  are  causes  of  nullity  in  insolvency  pro- 
ceedings : 

1.  The  failure  to  have  called  by  edicts  the  creditors  and  the  debtor 
absent  at  the  time  of  the  institution  of  proceedings. 

2.  The  failure  to  appoint  a  defender  for  the  property  subject  to  the 
insolvency  proceedings,  in  the  cases  prescribed  by  law. 

3.  The  failure  to  have  evidence  taken  in  the  cause  and  to  publish  the 
order  directing  the  production  of  evidence  by  edicts. 

4.  The  failure  to  have  cited  for  judgment,  or  fixed  a  day  for  the 
arguments;  and 

5.  The  failure  to  have  published  the  judgment  in  the  form  prescribed 
in  article  1188. 

808) .  ART.  918.  The  illegitimacy  of  the  representation  of  one  or  more 
of  the  creditors  in  insolvency  proceedings,  does  not  annul  them ;  but  the 
petition  of  those  who  may  have  lacked  legitimate  representation  shall  be 
rejected,  and  they  shall  be  adjudged  to  pay  the  costs  which  they  may 
have  caused. 

From  this  provision  is  excepted  a  case  in  which  the  person  interested 
may  have  ratified  the  proceedings  had,  which  he  may  do  at  any  stage  of 
the  said  proceedings. 

809).  ART.  919.  At  any  stage  of  the  proceedings,  at  first  or  second 
instance,  if  the  Judge  or  Justice  taking  cognizance  thereof  should  note, 
before  rendering  judgment,  that  there  is  a  cause  of  nullity,  he  shall  so 
notify  the  parties,  and  if  any  of  them  should  request  a  rehearing  of  the 
case  within  twenty-four  hours  after  notice  of  the  respective  ruling,  the 
proceedings  had  shall  be  annulled  by  the  Judge  or  Tribunal,  and  the 
proceedings  shall  be  returned  to  their  state  at  the  time  the  nullity  was 
incurred.  But  if  none  of  the  parties  should  request  the  rehearing  of  the 
process,  the  proceedings  shall  pursue  their  natural  course,  and  such 
nullities  can  no  longer  be  pleaded  in  a  subsequent  instance,  nor  in  any 
other  proceedings  for  annulment. 

The  provisions  of  this  article  do  not  extend  to  nullities  due  to  lack  of 
jurisdiction  on  the  part  of  the  Judge,  and  illegitimacy  of  representation 
in  any  of  the  parties,  with  regard  to  which  the  provisions  of  the  follow- 
ing articles  shall  be  observed.  . 

810).  ART.  920.  At  no  time  can  one  of  the  parties  plead  such  nullities 
as  affect  the  contrary  party  only,  the  latter  being  the  only  one  which  has 
the  right  to  request  a  review  of  the  proceedings  in  such  case.  A  cause 
of  nullity  by  reason  of  the  illegitimacy  of  representation  with  regard  to 
which  the  special  provisions  of  article  924  shall  govern,  is  excepted. 


152 

8u).  ART.  921.  Incompetency  of  jurisdiction  which  cannot  be  pro- 
rogated annuls  the  proceedings,  and  in  such  case  it  is  not  necessary  to 
advise  the  parties. 

812).  ART.  922.  Illegitimacy  in  the  representation  exists  in  a  party 
when  such  party  or  his  attorney  should  not  be  a  legitimate  person  to 
appear  in  court,  either  generally  or  in  said  specific  suit. 

813).  ART.  923.  Insufficiency  in  the  representation  of  a  party  exists 
when  such  party  is  represented  in  court  without  a  power  of  attorney  or 
mandate  having  been  granted  by  the  same,  by  a  person  not  of  those  who 
do  not  require  a  power  of  attorney  in  accordance  with  the  law,  or  when 
the  power  or  the  title  of  the  representation  lacks  any  of  the  legal  requi- 
sites. 

814).  ART.  924.  In  the  case  of  illegitimacy  in  the  representation  of 
any  of  the  parties,  the  proceedings  shall  always  be  annulled  even 
though  no  request  therefor  be  made,  unless,  the  representation  being 
legalized,  both  parties  shall  in  an  express  manner  ratify  what  may  have 
been  done  before,  for  which,  before  pronouncing  the  annulment,  the 
Judge  or  Magistrate  taking  cogizance  of  the  cause  shall  announce  the 
nullity  to  the  parties,  in  order  that  within  forty-eight  hours  they  may 
make  use,  if  they  so  wish,  of  the  right  granted  by  this  article. 


SIXTH  AMENDMENT. 
(Of  Law  53  0/1882.) 

815).  ART.  925.  In  the  case  of  insufficiency  of  representation  of  any 
of  the  parties,  this  cause  of  nullity  shall  by  means  of  personal  notifica- 
tion, be  communicated  to  the  party  improperly  represented,  and  if  such 
party  should  ratify  the  proceedings  had  and  legalize  his  representation 
the  proceedings  shall  not  be  annulled ;  but  it  is  necessary  that  the  ratifi- 
cation be  ma'de  in  an  express  manner ;  silence  of  the  party  shall  not  be 
sufficient  to  make  the  proceedings  valid. 

The  personal  notification  referred  to  in  this  article  may  be  served  not 
only  upon  the  person  interested,  but  also  upon  his  attorney  in  fact,  duly 
constituted,  who  may  likewise  ratify  the  proceedings  had ;  and  in  such 
case  it  is  not  necessary  to  legalize  the  representation.* 

8 1 6).  ART.  926.  The  nullities  which  may  have  been  incurred  in  the 
first  instance,  may  be  pleaded  therein  in  the  second  instance:  but 
not  in  the  latter  when  in  the  former  a  decision  shall  have  been  rendered 
by  a  rule  which  has  already  become  final  or  when  they  shall  have  been 
cured  in  accordance  with  the  preceding  articles. 

*  Expressly  repealed  by  article  338  of  Law  105  of  1890;  it  had  already  been  re- 
pealed by  article  338  of  Law  57  of  1887,  which  declared  amendment  r>  <>i  Law  53  of 
1 882,  which  is  this  article,  to  be  repealed. 


153 

817).  ART.  927.  With  the  exception  of  the  cases  mentioned,  the 
nullities  of  proceedings  cannot  be  pleaded  or  inforced,  whether  a  judicial 
decision  shall  have  been  rendered  thereon  in  accordance  with  the 
provisions  of  this  Title,  or  whether  nothing  shall  have  been  decided  in  the 
matter,  as  it  is  during  the  course  of  the  proceedings  themselves,  and  in 
accordance  with  the  said  provisions,  that  the  parties  must  take  care  to 
denounce  the  nullities  from  which  such  proceedings  suffer. 

SEVENTH  AMENDMENT. 
(Of  Law  53  of  1882.) 

8 1 8).  ART.  928.  When  in  a  case  of  insufficiency  of  representation  if 
the  party  improperly  represented  should  not  be  able  to  ratify  the  pro- 
ceedings had,  by  reason  of  his  death  without  having  left  heirs,  being  a 
moral  or  juridical  entity  with  no  one  to  represent  it  legally,  or  for  any 
other  reason  similar  hereto,  all  the  proceedings  had  from  the  time  the 
said  nullity  began  to  affect  them,  shall  be  annulled. 

This  provision  is  not  an  obstacle  to  the  ratification  of  the  proceedings 
had,  if  a  company  be  the  party  improperly  represented  in  the  suit,  by 
the  person  representing  the  Company.  The  personal  notice  referred 
to  in  Amendment  6  of  this  Law,  shall  be  served  upon  the  person  estab- 
lishing that  he  can  represent  the  Company  in  court.* 

NOTE: — The  following  articles,  Nos.  819  to  838  of  order,  are  the 
articles  of  Law  105  of  1890  which  subrogate  the  preceding  ones  of  this 
Title. 

819).  ART.  123  of  Law  105  of  1890.  The  only  causes  of  nullity  in  all 
judicial  proceedings  are : 

1 .  Incompetency  of  jurisdiction : 

2.  Illegitimacy  in  the  representation  of  any  of  the  parties. 

820,  821,  826. 

820).  ART.  124  of  Law  105  of  1890.  Incompetency  of  jurisdiction 
does  not  produce  nullity  in  the  following  cases : 

1.  If  the  jurisdiction  is  subject  to  prorogation  and  the  parties  have 
taken  part  in  the  suit  without  making  the  proper  objection. 

2.  If  having  objected  upon  this  point,  the  objection  shall  have  been 
overruled,  and  such  declaration  shall  have  become  final  or  been  confirmed. 

3.  If  the  jurisdiction  be  not  subject  to  prorogation  and  the  proceed- 
ings had  are  ratified. 

828,  829,  832  subdivision  i. 


*This  is  the  only  article  of  this  Title  which  has  not  been  expressly  repealed;  but 
Amendment  6,  to  which  it  refers — ordinal  article  815 — has  been  repealed. 


154 

4.  If  the  lack  of  jurisdiction  arises  only  from  an  error  in  the  distribu- 
tion, by  reason  of  having  been  made  improperly,  or  not  made  whether 
in  the  superior  or  inferior  courts. 

5.  When  the  only  cause  shall  have  been  a  declaration,  improperly 
made,  that  some  impediment  or  cause  of  recusation  was  legal  or  illegal ; 
provided  that  such  declaration  or  the  order  assuming  the  cognizance  of 
the  proceedings  shall  have  become  final. 

609. 

6.  When  due  to  another  Justice  or  Judge  not  having  jurisdiction 
having  at  some  time  taken  cognizance  of  the  matter,  provided  that  such 
official  shall  have  already  separated  himself  from  the  cognizance  thereof 
and  the  parties  shall  have  continued  availing  themselves  of  their  rights 
before  another  having  jurisdiction;  and 

7.  When  the  basis  therefor  shall  have  been  the  appointment  to  the 
office  of  a  person  who  was  not  eligible. 

821).  ART.  125  of  Law  105  of  1890.  Illegitimacy  in  the  representa- 
tion of  any  of  the  parties  is  not  a  cause  of  nullity  in  the  following  ca  ses : 

1 .  When  by  a  final  decision,  it  shall  have  been  declared  that  the  rep- 
resentation of  the  party,  his  attorney  or  representative  is  legal. 

2 .  When  the  records  should  contain  a  power  of  attorney  in  legal  form 
conferred  upon  the  person  in  question,  even  though  the  latter  should 
not  have  admitted  it  expressly. 

98,  99,  loo. 

3.  When  although  the  power  be  not  sufficient,  the  party  interested 
or  some  attorney  in  fact  or  legal  representative  of  his,  ratifies  the  pro- 
ceedings had ;  and 

4.  When  it  shall  appear  clearly  on  the  face  of  the  records  that  the 
person  interested  has  assented  to  the  person  who  figures  in  the  proceed- 
ings as  his  attorney,  representing  his  rights,  even  though  he  should  not 
have  a  power  of  attorney,  or  the  latter  should  not  conform  to  law. 

90,  98,  99,  100,  114,  115,  130,  8.26,  831,  832  subdivision  2. 

822).  ART.  126  of  Law  105  of  1890.  In  ordinary  suits  a  cause  of 
nullity  is  the  failure  to  serve  notice  of  the  complaint  upon  the  defendant. 
The  following  cases  are  excepted  from  the  provisions  of  this  article : 

1.  If  the  defendant  shall  have  entered  an  appearance  in  person  or 
through  an  attorney  in  the  suit,  making  even  one  petition  without 
demanding  a  declaration  of  nullity ;  and 

2.  If  he  shall  have  demanded  such  declaration  and  his  request  shall 
have  been  overruled,  and  the  ruling  doing  so  shall  have  been  confirmed  or 
become  final. 

832  subdivision  3,  833  paragraphs  i  and  3. 


155 

823)-  ART.  127  of  I/aw  105  of  1890.  In  executory  actions  the  following 
are  causes  of  nullity : 

1 .  The  failure  to  legally  notify  the  debtor  of  the  writ  of  execution ;  and 

2.  The  failure  to  post  notices,  when  the  debtor  shall  not  have  waived 
them,  for  the  sale  of  the  property  to  be  disposed  of  at  public  sale,  and  a 
failure  to  hold  the  sale  in  accordance  with  the  provisions  of  articles  1060 
to  1066  of  the  Code. 

824,  1068,  833  second  par. 

824).  ART.  128  of  Law  105  of  1890.  Lack  of  citation  for  judgment 
directing  the  sale  and  announcement  thereof  by  public  crier,  does  not 
induce  a  nullity ;  but  at  any  stage  that  the  execution  debtor  may  appear, 
he  may  plead  exceptions,  and  in  such  case  the  announcement  and  sale  of 
the  property  shall  be  suspended. 

If  the  sale  should  have  taken  place,  the  money  shall  be  placed  in  the 
hands  of  the  person  designated  by  article  245*  at  interest,  demanding  it 
of  the  creditor  if  it  shall  already  have  been  delivered. 

825).  ART.  129  of  Law  105  of  1890.  In  bankruptcy  proceedings,  a 
cause  of  nullity  is  the  failure  to  serve  notice  at  least  by  an  edict  posted 
in  the  place  of  the  proceedings  for  a  term  of  thirty  days,  the  order  de- 
claring the  proceedings  to  have  been  instituted,  excepting  in  the  follow- 
ing cases : 

1.  If  all  the  creditors  and  the  debtor  should  have  been  personally 
cited. 

2.  When  the  creditors  or  the  debtor  not  cited  shall  have  been  repre- 
sented in  the  proceedings  without  this  nullity  having  been  pleaded  after 
their  first  petition. 

832  subdivision  2,  833  last  par. 

826).  ART.  130  of  Law  105  of  1890.  The  illegitimacy  of  the  represen- 
tation of  him  who  represents  a  creditor  in  bankruptcy  proceedings,  does 
not  entail  the  nullity  of  the  principal  proceedings ;  only  the  respective 
part  of  the  proceedings  had  can  be  annulled,  if  the  person  interested 
should  expressly  so  lequest. 

819,  821,  832  subdivision  2. 

827).  ART.  131  of  Law  105  of  1890.  Nor  does  a  failure  to  render 
judgment  in  the  form  prescribed  in  the  Code  entail  a  declaration  of  the 
nullity  of  the  proceedings.  But  if  the  judgment  should  not  clearly 
express  the  rights  and  duties  which  should  result  to  the  parties  there- 
from, a  plea  of  nullity  may  be  interposed  when  its  execution  is  en- 
deavored, or  its  annulment  may  be  requested  in  an  ordinary  action 

*  Ordinal  1 1 44. 


156 

which  is  not  an  obstacle  to  the  elucidation  of  the  obscure  judgment,  in 
accordance  with  article  860*  of  the  Code. 

828).  ART.  132  of  Law  105  of  1890.  In  the  case  of  subdivision  3  of 
article  1 24  of  this  Law,  the  ratification  of  the  proceedings  had  does  not 
give  jurisdiction  to  the  Justice  or  Judge  to  continue  taking  cognizance 
of  the  matter,  and  the  record  must  be  forwarded  to  the  Judge  or  Justice 
of  competent  jurisdiction,  in  order  that  he  may  continue  taking  cogni- 
zance of  the  matter  in  the  state  in  which  it  may  be.  In  other  cases  he 
shall  continue  taking  cognizance  to  the  termination  of  the  suit. 

829).  ART.  133  of  Law  105  of  1890.  The  agents  of  the  Department 
of  Public  Prosecution,  the  representatives  of  the  corporations,  con- 
gresses or  communities,  and  guardians,  cannot  ratify  the  proceedings 
had  before  the  Judge  or  Justice  not  having  jurisdiction,  in  a  case  in 
which  such  jurisdiction  should  be  subject  to  prorogation,  except  for 
cause  of  evident  utility  judicially  declared. 

820  subdivisions  3  and  6. 

830).  ART.  134  of  Law  105  of  1890.  A  Justice  or  Judge  taking  cogni- 
zance of  a  suit  who  before  deciding  upon  the  main  issue  should  observe 
that  some  cause  of  nullity  exists,  shall  direct  that  the  parties  be  informed 
thereof.  If  the  person  having  a  right  to  demand  a  review  of  the  pro- 
ceedings had  should  not  demand  it  before  the  expiration  of  three  days, 
or  the  proceedings  had  should  be  expressly  ratified,  the  nullity  shall  be 
considered  as  cured,  and  the  proceedings  shall  follow  their  course ;  but 
if  said  party  should  expressly  request  the  annulment,  the  proceedings 
shall  be  annulled  from  the  stage  they  had  reached  when  the  cause  of 
nullity  occurred,  the  proceedings  had  before  remaining  valid.  Silence 
shall  be  considered  as  curing  the  nullity. 

When  in  the  Supreme  Court  and  the  Superior  District  Tribunals  the 
record  should  -have  passed  to  the  plural  Chamber  for  its  definitive  de- 
cision, it  shall  be  the  duty  of  such  chamber  to  notify  the  parties  of  the 
causes  of  nullity  which  it  may  observe  in  the  proceedings,  and  pass 
thereon. 

831,832. 

831).  ART.  135  of  Law  105  of  1890.  In  cases  of  illegitimacy  of  rep- 
resentation and  in  accordance  with  the  preceding  article,  the  respective 
decision  shall  be  personally  served  upon  the  party  interested,  or  upon 
the  person  legally  representing  him,  in  order  that  he  may  avail  himself 
of  his  rights;  and  if  the  proceedings  should  not  be  annulled,  the  repre- 
sentation of  him  who  figured  improperly  in  the  proceedings  is  thereby 

*  Ordinal  725. 


157 

legitimated.     For  this  notification  the  provisions  of  article  25*  of  this 
Law  may  be  observed. 

821. 

832).  ART.  136  of  Law  105  of  1890.  The  following  have  the  right 
to  request  a  review  of  the  proceedings  had : 

1.  In  a  nullity  by  reason  of  incompetencyof  jurisdiction  which  could 
not  have  been  prorogated,  or  which  may  not  have  been  prorogated  in 
accordance  with  the  law,  by  any  of  the  parties. 

820. 

2.  In  SL  nullity  by  reason  of  illegitimacy  of  representation  of  any  of 
the  parties  the  person  interested  whose  rights  may  have  been  improperly 
represented  or  his  legal  representatives. 

99,  821. 

3.  In  a  nullity  by  reason  of  failure  to  serve  notice  of  the  complaint 
or  order  of  payment,  the  defendant  or  execution  debtor. 

822,  823  subdivision  i . 

4.  In  a  nullity  by  reason  of  a  failure  to  summon  or  cite  in  bankruptcy 
proceedings,  the  creditor  or  creditors,  or  the  debtor  who  may  not  have 
been  cited;  but  if  the  debtor  should  have  been  the  petitioner  in  bank- 
ruptcy, the  proceedings  shall  not  be  annulled  by  reason  of  a  failure  to 
cite  the  bankrupt. 

825,  829,  1 1 53  subdivision  3,  1155,  1219. 

833).  ART.  137  of  Law  105  of  1890.  A  cause  of  nullity  consisting  in 
a  failure  to  serve  notice  of  the  complaint  upon  the  defendant,  reserving 
the  exceptions  established  in  article  i26f  of  this  Law,  may  be  pleaded 
in  the  proceedings  themselves,  or  as  an  action  in  different  proceed- 
ings :  or  as  an  exception  when  the  judgment  is  about  to  be  executed. 

The  causes  of  nullity  established  in  article  127!  of  this  Law,  may  be 
pleaded ;  the  first,  during  the  proceedings  or  in  a  different  proceeding  ; 
and  the  second,  only  in  the  last  named  manner. 

The  exceptions  established  in  article  126  apply  to  executory  actions. 

A  cause  of  nullity  consisting  in  a  failure  to  serve  notice  of  the  order 
regarding  the  institution  of  bankruptcy  proceedings;  reserving  the  ex- 
ceptions established  in  article  129$  of  this  Law,  may  be  pleaded  in  the 
said  proceedings,  or  as  an  action  in  a  different  proceeding. 

*  Ordinal  212. 
t  Ordinal  822. 
J  Ordinal  823 
§  Ordinal  825. 


158 

834)  ART.  138  of  Law  105  of  1890.  The  actions  or  exceptions  of 
nullity  of  definitive  judgments  of  last  instance,  already  rendered,  which 
the  respective  persons  interested  have  a  right  to  propose  in  accordance 
with  the  legislation  of  the  extinguished  States  in  force,  may  be  proposed 
in  the  terms  established  by  such  legislation. 

835).  ART.  135  of  Law  105  of  1890.  Whenever  any  proceedings 
shall  be  annulled,  the  costs  pertaining  to  the  part  annulled  shall  be 
taxed  against  the  official  responsible  for  the  nullity. 

732  first  par,  836,  837,  838. 

836).  ART.  140  of  Law  105  of  r89o.  If  the  fault  were  not  entirely 
that  of  the  Judge,  as  in  the  case  of  illegitimacy  of  representation  of 
the  party  who  may  have  been  admitted  as  such  by  the  Judge  whetj  he 
should  not  have  been  so  admitted,  or  in  any  othfr  case  in  which  the 
Judge  should  have  noted  the  irregularity  which  was  being  incurred,  one- 
half  of  the  costs  shall  be  paid  by  the  Judge  and  the  other  half  by  the 
party  responsible. 

732  second  and  third  pars. 

837).  ART.  141  of  Law  105  of  1890.  After  the  annulment  of  some  pro- 
ceedings or  of  a  part  thereof,  the  persons  interested  may  revalidate  the 
proceedings  annulled,  and  upon  this  being  done  the  adjudication  of  costs 
referred  to  in  article  139*  shall  have  no  effect  whatsoever.  If  the  costs 
should  already  have  been  paid,  they  may  be  recovered  as  an  improper 
payment. 

838).  ART.  142  of  Law  105  of  1890.  When  what  is  annulled  consists 
of  a  portion  of  a  process  so  that  the  proceedings  are  to  be  followed  im- 
mediately after  the  same  process,  the  official  responsible  for  the  nullity 
shall  not  be  obliged  to  pay  for  the  instruments  and  other  documents 
which  by  a  mere  reproduction  during  the  probatory  term  produce  their 
effects. 

*  Ordinal  835. 


159 

TITLE  IX. 

Ordinary  Actions. 

CHAPTER  I. 
First  Instance. 

839).  ART.  929.  Every  judicial  controversy  for  which  no  special  pro- 
cedure is  established  by  this  Code,  shall  be  heard  and  determined  in  an 
ordinary  action,  which  is  that  treated  of  in  this  Title. 

3- 

TWENTIETH  AMENDMENT. 

(Of  Law  46  of  1876.) 

840).  ART.  930.  Every  complaint  shall  be  made  in  writing  to  the 
Judge  or  Tribunal  competent  to  take  cognizance  thereof.  The  plaintiff 
may  attach  to  the  complaint  such  documents  as  he  may  deem  advisable. 

17,  19,  841,  859,  860. 

841).  ART.  931.  If  the  complainant  should  not  be  able  to  attach 
to  his  complaint  the  documents  upon  which  he  bases  it,  he  shall  at  least 
designate  the  archives  or  place  where  the  originals  are  or  should  be. 

19,  840,  859,  860. 

TWENTY-FIRST  AMENDMENT. 
(Of  Law  46  of  1876.) 

842).  ART.  932.  The  complaint  shall  begin  with  designation  of  the 
Judge  or  Tribunal  to  which  it  is  addressed.  In  the  body  of  the 
instrument  shall  be  stated :  i .  The  name  of  the  complainant,  whether 
he  sues  on  his  own  behalf  or  in  the  name  of  another,  and  his  residence : 
2.  The  name  of  the  defendant,  his  residence,  or  his  status,  adding,  if  the 
defendant  be  a  married  woman,  the  name  of  the  husband :  3.'  The  sub- 
ject of  the  suit:  4.  The  right,  cause  or  reason  for  which  the  suit  is 
brought .  The  facts  supporting  the  complaint  shall  be  placed  th  ereaf ter , 
being  clearly  and  specifically  stated,  and  they  shall  be  numbered,  in 
order  that  each  fact  may  appear  separately. 

17,  36  to  41. 


i6o 

843).  ART.  933.  The  Judge  to  whom  a  complaint  may  be  presented, 
shall  return  the  same  within  twenty-four  hours  to  the  person  presenting 
it,  if  it  should  lack  any  of  the  requisites  mentioned  in  the  preceding 
article,  designating  which  is  lacking;  or  when  there  is  obscurity  as  to 
what  is  sued  for,  in  order  that  it  may  be  elucidated,  so  that  the  Judge 
may  understand  perfectly  what  is  requested. 

18. 

844).  ART.  934.  The  written  complaint  shall  be  ordered  referred  to 
the  defendant  for  five  days;  for  the  issue  of  this  order,  the  Judge  is 
granted  twenty-four  hours 

743,  744  second  par.,  855. 

845).  ART.  935.  If  there  should  be  a  number  of  defendants,  the  com- 
plaint shall  be  referred  to  each  of  them  successively  for  the  said  period 
of  five  days.  The  order  then  observed  among  the  defendants,  shall  con- 
tinue to  be  observed  in  the  subsequent  proceedings  in  the  action. 

880. 

846).  ART.  936.  The  order  directing  the  reference  of  the  complaint 
shall  also  direct  the  making  of  a  copy  thereof,  which  must  remain  in  the 
files. 

344- 

847).  ART.  937.  The  defendant  must  answer  either  assenting  to  the 
action  brought  against  him,  or  contradicting  it  unless  he  shall  interpose 
dilatory  exceptions,  in  which  case  the  provisions  of  the  Chapter  relating 
thereto  shall  be  observed. 

265. 

TWENTY-SECOND  AMENDMENT. 
(Of  Law  46  of  1876.) 

848).  ART.  938.  If  the  defendant  should  not  assent  to  what  is  de- 
manded of  him  in  the  complaint,  he  shall  state  briefly  the  reasons  he  may 
have  for  such  non-assent,  being  allowed  to  attach  the  documents  upon 
which  he  wishes  to  base  them,  and  availing  himself  of  the  peremptory 
exceptions  which  relieve  him  of  the  charges  of  the  complaint ;  and  with 
regard  to  the  facts  contained  and  enumerated  in  the  complaint,  he  shall 
make  answer  to  each  one  of  them,  stating  whether  he  accepts  them  as 
true  or  his  reasons  for  not 'assenting  thereto.  The  facts  upon  which 


he  bases  the  answer  shall  be  arranged  by  the  defendant  in  the  same  man- 
ner as  required  of  the  complainant. 

842,  854. 

TWENTY-THIRD  AMENDMENT. 
(Of  Law  46  of  1876.) 

849).  ART.  939.*  The  answer  to  the  complaint  shall  be  referred  to  the 
complainant  for  three  days  in  order  that  he  may  file  a  replication  to 
what  is  stated  therein,  and  in  order  that  he  may  reply  to  the  facts  enume- 
rated in  the  answer,  in  the  manner  prescribed  for  the  defendant. 

850).  ART.  940. f  The  Judge,  before  hearing  evidence  in  the  cause, 
shall  declare  both  the  defendant  and  the  complainant  to  have  confessed 
the  acts  to  which  they  may  have  made  no  answer,  if  able  to  do  so .  This 
declaration  shall  be  made  by  observing  the  procedure  established  for 
incidental  issues. 

851).  ART.  941.  The  Judge,  in  the  order  directing  the  submission  of 
evidence  in  the  cause,  shall  clearly  determine  the  acts  which  are  to  be 
the  subject  thereof;  which  shall  not  be  others  than  those  indicated  in 
the  complaint  and  in  the  answers,  and  as  to  which  the  parties  may  not 
agree,  either  by  express  assent,  or  by  a  declaration  of  having  confessed 
by  reason  of  failure  to  answer. 

When  the  complaint  is  not  answered,  all  the  facts  therein  stated  shall 
be  considered  to  be  proved ;  but  during  the  probatory  term  the  defend- 
ant may  adduce  proof  thereagainst. 

852).  ART.  942.  %  When  it  shall  appear  that  there  are  no  facts  to  be 
proved,  the  Judge  shall  declare  that  the  controversy  is  one  of  pure  law ; 
and  upon  this  ruling  becoming  final,  he  shall  direct  that  the  record  be 
delivered  to  the  parties  for  argument. 

853).  ART.  943.  The  parties  may  within  twenty-four  hours  after  hav- 
ing been  notified  of  the  order  directing  the  taking  of  evidence,  request 
that  the  taking  of  such  evidence  be  extended  to  other  points  in  addition 
to  those  determined  by  the  Judge,  and  they  have  the  right  to  interpose 
an  appeal  from  the  decision  he  may  render  in  order  that  the  superior 
may  definitely  fix  the  points  to  which  the  evidence  is  to  be  confined, 
and  the  probatory  term  shall  not  begin  to  be  counted  in  this  case  but 
from  the  time  of  the  notice  of  the  order  directing  the  execution  of  the 
decision  of  the  superior. 

This  and  the  four  articles  preceding  it  have  been  expressly  repealed 
and  subrogated  by  the  following  four : 

*  Expressly  repealed.  See  note  to  art.  853. 
t  Expressly  repealed.  See  note  to  art.  853. 
%  Expressly  repealed.  See  note  to  art.  853 


162 

854).  ART.  143  of  Law  105  of  1890.  The  Judge  shall  carefully 
examine  the  answer  to  the  complaint,  and  if  the  defendant  should 
not  have  made  answer  in  the  manner  prescribed  by  article  938*  of  the 
Judicial  Code,  he  shall  by  means  of  an  order  indicate  to  him  the 
defects  in  said  answer,  mentioning  them  in  separate  paragraphs  as 
clearly  as  possible.  The  same  order  shall  state  that  the  defendant  must 
within  three  days  make  the  corrections  ordered. 

855).  ART.  144  of  Law  105  of  1890.  The  Judge,  both  in  the  order 
directing  the  reference  of  the  complaint  as  in  that  directing  the  correc- 
tion of  the  defects  which  the  respective  answer  may  contain  shall  inform 
the  defendant  that  if  he  shall  fail  to  make  answer  to  the  complaint  in 
due  time,  or  if  he  should  not  make  the  corrections  indicated,  either  by 
failing  to  do  so  absolutely,  or  doing  so  after  the  three  days,  or  be- 
cause the  corrections  are  incomplete  or  ambiguous,  or  not  in  accordance 
with  the  points  of  the  complaint,  he  shall  be  adjudged  in  the  definitive 
judgment,  to  pay,  in  addition  to  the  costs  which  may  be  proper,  a  fine 
of  fifty  to  three  hundred  pesos  in  favor  of  the  complainant,  if  the  defini- 
tive judgment  were  in  favor  of  the  latter.  Such  fine  shall  be  imposed 
by  the  Judge  in  his  discretion. 

854,  857- 

856).  ART.  145  of  Law  105  of  1890.  The  complaint  having  been 
answered  and  the  corrections  directed  having  been  made,  if  the  parties 
should  agree  as  to  the  facts,  but  not  as  to  the  points  of  law,  the  Judge 
shall  order  that  the  record  be  delivered  to  each  of  the  parti  es  for  argu- 
ment; if  they  should  also  agree  as  to  the  points  of  law,  they  shall  be 
cited  for  judgment.  If  there  should  be  disagreement  as  to  the  facts,  the 
Judge  shall  open  the  cause  for  the  admission  of  evidence,  in  order  that 
the  parties  may  present  such  evidence  as  they  may  deem  advisable. 

The  provisions  of  this  article  are  without  prejudice  to  the  provisions 
of  article  577  and  944!  of  the  Judicial  Code  and  of  any  other  special 
provisions,  t 

857).  ART.  146  of  Law  105  of  1890.  If  the  defendant  should  fail  to 
make  answer  to  the  complaint  or  not  make  the  corrections  which  he 
may  have  been  directed  to  make,  the  Judge  shall  confine  himself 
to  the  taking  of  evidence,  in  order  that  the  parties  may  present  such 
evidence  as  they  may  deem  proper,  in  accordance  with  the  provisions  of 
articles  542  to  544§  of  the  Judicial  Code,  the  judge  being  obliged  in  the 
definite  judgment  to  comply  with  the  provisions  of  article  144.  || 

*  Ordinal  848. 
t  Ordinals  408  and  S.sK. 

%  This  article  subrogates  ordinal  article  874,  which  was  expressly  repealed  by 
article  338  of  Law  105  of  1890. 
§  Ordinals  371  to  373. 
||  Ordinal  855. 


858).  ART.  944.  When  the  complaint  is  answered  through  a  defender 
(dejensor}  or  curator,  and  in  suits  for  divorce  by  the  spouse  or  legal  rep- 
resentative, even  though  they  should  agree  as  to  the  facts  or  not  make 
answer  in  an  express  manner,  or  in  any  manner  whatsoever,  the  defend- 
ant shall  not  be  held  to  have  confessed,  but  the  suit  shall  be  submitted 
for  evidence  as  if  there  had  been  contradiction. 

387,  856  second  par.,  408. 

859).  ART.  945.  The  defendant  is  also  obliged  to  present  with  the 
answer  to  the  complaint,  the  documents  upon  which  he  bases  his  defense, 
or  designate  the  archives  or  place  in  which  they  are  or  should  be. 

19,  840,  841,  860,  1373. 

860).  ART.  946.  The  complaint  having  been  answered,  neither  the 
complainant  nor  the  defendant  can  make  use  of  other  documents  of  a 
date  prior  to  the  answer,  unless  they  shall  first  swear,  in  due  form,  that 
the  party  had  not  had  knowledge  of  these  documents  or  that  he  did 
not  believe  them  necessary  for  the  defense  of  his  rights. 

19,  840,  841,  859,  1373. 

86 1).  ART.  947.  The  defendant  may,  if  he  believes  that  the  com- 
plainant owes  him  something,  interpose  a  complaint  against  him  in  the 
answer.  Such  complaint  is  called  a  counter-claim  and  the  defendant 
by  such  act,  submits  himself  to  the  jurisdiction  of  the  Judge  over  the 
action  brought  by  the  complainant,  even  though  he  should  be  incom- 
petent herefor. 


TWENTY-FOURTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

862).  ART.  948.  The  counter-claim  must  be  embodied  in  a  docu- 
ment separate  from  the  answer,  but  it  shall  be  presented  together  with 
the  latter  and  a  separate  record  formed.  It  must  contain  the  same 
requisites  as  all  complaints,  and  if  it  should  not  be  filed  with  the 
answer,  the  defendant  shall  not  be  able  to  enforce  any  right  against  the 
complainant  except  in  a  different  action. 

863).  ART.  949.  The  complaint  in  reconvention  shall  be  referred  for 
five  days  to  the  complainant,  and  if  the  latter  should  persist  in  his  com- 
plaint, denying  that  in  reconvention,  both  shall  be  heard  in  the  same 
proceeding  (bajo  una  misma  cuerda)  and  shall  be  decided  by  the  same 
judgment. 

678. 


164 

TWENTY-FIFTH  AMENDMENT. 

(Law  46  of  1876.) 

864).  ART.  950.  Peremptory  exceptions  shall  be  proposed  in  the 
answer  to  the  complaint,  and  the  facts  or  documents  upon  which  they 
are  based  shall  be  stated  therein.  These  exceptions  shall  be  decided  in 
the  definitive  judgment. 

288. 

TWENTY-SIXTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

865).  ART.  951.  Between  the  time  the  complaint  is  referred  until 
answer  is  made  thereto,  the  defendant  has  the  right  to  denounce  the  suit 
to  the  person  whom  he  believes  should  come  to  the  defense  of  the  thing 
the  subject  of  the  suit,  on  account  of  being  obliged  to  warrant  it  for  any 
reason. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

866).  ART.  147  of  Law  105  of  1890.  A  purchaser  who  may  have  to 
be  protected  in  accordance  with  the  Civil  Code  in  the  ownership  and 
peaceful  possession  of  the  thing  sold,  has  the  right  to  denounce  any  suit 
which  he  may  have  to  bring  or  which  may  be  brought  against  him,  when 
due  to  a  cause  prior  to  the  sale.  If  the  action  were  an  ordinary  one,  the 
right  to  denounce  the  suit  continues  to  the  day  answer  is  made;  if  a 
special  proceeding,  the  denunciation  must  be  made  within  six  days  next 
after  that  on  which  the  parties  are  notified  of  the  first  order  in  the  pro- 
ceedings in  which  a  judgment  is  to  be  rendered  which  might  affect  the 
rights  of  the  purchaser. 

1894,  1895,  1896,  1897,  1899,  1900  and  1901  of  the  Civil  Code. 

867).  ART.  952.  The  denunciation  shall  be  made  in  writing  before  the 
Judge  of  the  cause,  and  the  person  making  it  must  attach  thereto  the 
evidence,  even  though  summary,  establishing  that  he  can  avail  himself 
of  such  right,  in  accordance  with  the  substantive  laws. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated 
by  the  following: 

868).  ART.  148  of  Law  105  of  1890.  The  denunciation  shall  be  made 
in  writing,  before  the  Judge  of  the  cause,  and  the  person  making  it  must 
attach  thereto  full  proof  that  he  can  denounce  the  suit  in  accordance 
with  the  law. 

870.     1894,  1895,  1899  and  1900  of  the  Civil  Code. 


869) .  ART.  953.  If  the  Judge  should  find  that  the  denunciation  is  well 
based,  he  shall  order  that  the  person  denounced  be  notified  thereof,  fix- 
ing a  term,  taking  into  consideration  the  distance  at  which  he  may  be, 
for  him  to  appear  for  the  purpose  of  prosecuting  the  suit,  and  suspending, 
in  the  meantime,  the  course  thereof. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

870).  ART.  149  of  Law  105  of  1890.  If  the  Judge  should  find  that 
there  are  grounds  for  the  denunciation  he  shall  order  that  the  person 
denounced  be  notified  thereof,  fixing  a  term  of  five  days,  if  he  should 
reside  in  the  same  place,  for  him  to  appear  for  the  purpose  of  prosecuting 
the  suit,  and  suspending  in  the  meantime  the  course  thereof.  If  the 
person  denounced  should  not  reside  in  the  same  place,  the  Judge,  taking 
into  consideration  the  distance  at  which  he  may  be,  shall  set  a  term  for 
him  to  appear  for  the  purpose  mentioned,  also  suspending  the  course  of 
the  proceedings  during  such  term. 

The  provisions  of  the  preceding  article  are  without  prejudice  to  the 
provisions  of  article  955*  of  the  Judicial  Code. 

873,  1601. 

871).  ART.  954.  If  the  person  denounced  should  appear  and  become  a 
party,  the  proceedings  shall  be  continued  with  him,  the  person  making 
the  denunciation  being  permitted  to  continue  intervening  therein  for  the 
defense  of  his  rights ;  but  if  the  person  denounced  should  fail  to  enter  an 
appearance,  the  proceedings  shall  be  continued  with  the  defendant 
making  the  denunciation,  unless  he  shall  expressly  excuse  himself  from 
becoming  a  party,  in  which  case  the  plaintiff  may  proceed  by  way  of 
assent  or  proof  in  default. 

The  following  article  is  supplemental: 

872).  ART.  150  of  Law  105  of  1890.  If  successive  denunciations 
should  be  presented,  whether  the  parties  denounced  do  or  do  not  become 
parties  to  the  suit,  the  latter  shall  have  the  right  to  denounce  it  to  the 
person  whom  they  believe  should  assume  the  defense  of  the  thing  the 
subject  of  the  suit,  within  five  days  after  notice  of  the  order  admitting 
the  previous  denunciation. 

873).  ART.  955.  When  the  person  denounced  is  at  such  a  distance  that 
he  cannot  appear  within  thirty  days,  the  proceedings  shall  not  be  sus- 
pended by  reason  of  the  denunciation,  if  the  plaintiff  should  prefer  to 
continue  it  with  the  first  defendant. 

870. 
*  Ordinal  873. 


1 66 


874).  ART.  956.*  Answer  having  been  made  to  the  complaint,  if  the 
point  under  discussion  should  be  one  of  pure  law,  or  if  the  parties  should 
agree  as  to  the  facts  the  cause  of  the  suit,  the  Judge  shall  render  judg- 
ment, after  citation  of  the  litigants,  without  the  necessity  of  taking 
evidence  in  the  cause. 

In  the  case  mentioned  in  this  article,  the  restrictions  established  by 
article  577  must  be  borne  in  mind. 

875).  ART.  957.  When  there  are  facts  to  be  established,  upon  which 
the  parties  do  not  agree,  the  Judge  shall  submit  the  cause  for  evidence 
for  a  term  not  to  exceed  thirty  days,  and  on  the  petition  of  a  party,  there 
shall  be  granted,  in  addition,  the  time  necessary  to  go  and  return,  and 
ten  days  more,  when  evidence  is  to  be  taken  outside  of  the  place  where 
the  suit  is  being  heard,  and  for  such  evidence  only. 

876. 

876).  ART.  958.  When  a  party  should  request  a  term  for  the  taking 
of  testimony  in  a  State  other  than  that  in  which  the  suit  is  being  held, 
or  in  a  foreign  country,  he  must  affirm  under  oath,  if  it  should  not  appear 
on  the  face  of  the  record,  the  necessity  of  the  evidence  and  the  possibility 
of  obtaining  it ;  and  if  he  should  fail  to  present  the  evidence  within  the 
term  which  may  have  been  granted  him  to  obtain  it,  he  shall  be  adjudged 
in  the  definitive  judgment  to  pay  the  opposite  party  an  indemnity  of 
fifty  to  three  hundred  pesos,  unless  he  shall  prove  that  some  unexpected 
accident  prevented  him  from  securing  the  evidence.  Bond  to  the 
satisfaction  of  the  Judge  shall  be  furnished  on  this  obligation,  before  the 
granting  of  the  period. 

The  provisions  of  this  article  do  not  extend  to  the  Agents  of  the  De- 
partment of  Public  Prosecution  who  represent  the  Nation  in  judicial 
matters. 

452  to  456,  1596. 

877).  ART.  959.  The  petition  for  time  to  take  testimony  in  another 
State  or  in  a  foreign  country,  shall  be  heard  and  decided  as  an  inci- 
dental issue. 

878).  ART.  960.  Any  petition  for  time,  in  addition  to  the  ordinary 
term  of  thirty  days,  must  be  made  within  said  term. 

383,  560,  879. 

879).  ART.  961.  If  evidence  should  be  requested  or  witnesses  should 
be  presented  during  the  last  two  days  of  the  probatory  term,  or  the 
opposite  party  should  be  cited  for  the  taking  of  some  evidence  after  the 

*  Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated  by  ordinal 
article  856. 


i67 

expiration  of  such  term,  or  the  day  upon  which  it  expires,  the  latter 
shall  be  allowed,  if  he  should  need  them,  three  days  more  for  rebuttal, 
challenge  and  to  prove  the  challenges. 

880).  ART.  962.  Upon  the  termination  of  the  probatory  term  the 
Secretary,  without  the  necessity  of  a  motion,  shall  so  inform  the  Judge, 
who  shall  direct  that  the  record  be  delivered  to  the  parties  in  their  order 
for  the  purpose  of  submitting  briefs  in  support  of  their  contentions,  for 
six  days  to  each. 

845,  881. 

88 1).  ART.  963.  If  there  should  be  three  or  more  persons  interested 
in  a  suit,  the  term  within  which  to  submit  briefs  in  the  case  of  the  pre- 
ceding article  and  other  similar  cases,  shall  not  be  six  days  for  each 
party,  but  twelve,  common  to  all ;  and  in  such  case  the  records  shall  not 
be  removed  from  the  office  of  the  Secretary. 

882).  ART.  964.  After  the  submission  of  the  briefs,  or  the  return  of 
the  records,  or  the  payment  of  the  fines  imposed  by  reason  of  the  term 
granted  the  parties  having  expired,  the  Judge  shall,  the  same  day,  order 
the  parties  cited  for  judgment. 

345- 

883).  ART.  965.  The  judgment  shall  be  rendered  within  fifteen  days 
after  the  citation. 

333,  334- 

884).  ART.  966.  In  case  of  an  appeal  from  the  judgment,  the  provi- 
sions of  Title  VII  of  this  Book  shall  be  observed. 

783- 

TWENTY-SEVENTH  AMENDMENT. 
(Of  Law  46  o/  1876.) 

885) .  ART.  967.  A  copy  shall  be  retained  in  a  book  to  be  kept  for  the 
purpose  by  the  Secretary,  of  every  definitive  judgment  rendered  by 
Judges  of  First  Instance. 

886).  ART.  968.  Every  judgment  rendered  against  the  Nation  must 
first  be  submitted  to  the  Federal  Supreme  Court  for  consultation,  if  it 
should  not  be  appealed,  the  Judge  and  the  Court  proceeding  as  if  it  had 
been.  Judgments  in  favor  of  the  Nation  become  final  by  operation  of 
law,  upon  the  expiration  of  the  term  for  appealing  without  an  appeal 
having  been  taken. 

Supplemented  by  article  30  of  Law  169  of  1896. 


1 68 

TWENTY-EIGHTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

§  This  provision  comprises  the  definitive  and  interlocutory  judgments 
rendered  in  special  proceedings. 

1596. 

CHAPTER  II.* 

Second  Instance. 

887).  ART.  969.  Upon  the  receipt  by  the  (Supreme)  Court  of  a  record 
on  appeal  from  or  consultation  upon  a  definitive  judgment,  and  upon 
being  assigned  as  provided  in  article  22,  the  Justice  hearing  the  case  shall 
order  it  referred  to  the  Attorney-General  for  a  period  of  five  days,  in 
order  that  he  may  within  such  time  state  whether  or  not  he  has  evidence 
to  submit  in  the  second  instance. 

888).  ART.  970.  For  the  term  of  five  days,  referred  to  in  the  preced- 
ing article,  the  other  parties  shall  be  informed  by  edict  of  the  receipt 
of  the  records  by  the  Court,  for  the  same  purpose  as  that  stated  with 
regard  to  the  Attorney-General,  at  the  close  of  the  preceding  article ;  the 
Justice  hearing  the  case  shall  likewise  embody  such  a  provision  in  his 
first  order. 

During  the  term  of  the  edict  the  records  shall  be  open  to  inspection  in 
the  office  of  the  Attorney-General,  to  any  of  the  other  parties  who  may 
request  it,  but  without  their  removal  being  permitted. 

889).  ART.  971.  Upon  the  expiration  of  the  five  days,  if  the  records 
shall  have  been  returned  by  the  Attorney-General,  the  Secretary  shall 
transfer  them  to  the  office  of  the  Justice  taking  cognizance  thereof, 
together  with  the  requests  which  said  official  and  the  other  parties  may 
have  presented  during  such  term. 

890).  ART.  972.  If  none  of  the  parties  should  have  requested  that  the 
cause  be  submitted  for  evidence,  the  record  shall  be  ordered  delivered  to 
the  parties,  for  six  days  to  each,  in  order  that  they  may  plead  in  writing. 

891).  ART.  973.  Upon  the  expiration  of  the  terms  for  the  written 
pleadings,  citation  for  judgment  shall  issue,  and  a  date  for  the  public 
hearing  shall  be  fixed  in  the  same  order.  The  date  therefor  cannot  be 
less  than  four  nor  more  than  eight  days  from  the  date  of  citation  for 
judgment. 

892).  ART.  974.  Within  the  fifteen  days  next  after  the  last  of  the 
pleadings,  the  Court  shall  render  judgment  affirming,  reversing  or 
amending  that  at  first  instance,  according  as  to  whether  such  judgment 
does  or  does  not  conform  to  the  laws  and  the  merits  of  the  case. 


*  All  the  articles  of  this  Chapter  have  been  repealed  by  article  338  of  Law  105  of 
[890,  and  subrogated  by  articles  899  to  91 7  of  order. 


1 69 

EIGHTH  AMENDMENT. 

(Of  Law  53  of  1882.) 

893).  ART.  975.  Upon  the  conclusion  of  the  probatory  term,  the 
Supreme  Court  has  the  power  to  make  orders  in  furtherance  of  justice 
(para  mejor  proueer) ,  for  the  purpose  of  elucidating  points  which  it  may 
consider  doubtful,  and  for  the  purpose  of  supplementing  the  evidence,  in 
order  that  right  may  not  be  sacrificed  to  forms.  Upon  an  order  in 
furtherance  of  justice  made  in  a  proceeding  having  been  fulfilled  in  all  its 
parts,  another  cannot  be  made  in  the  same  proceeding ;  unless  new  facts 
shall  appear  which  it  is  necessary  to  prove  and  which  may  have  been 
suggested  by  the  first  order  made.* 

894).  ART.  976.  The  decision  of  the  Court  having  been  published  and 
notice  thereof  served  upon  the  parties,  the  provisions  of  article  895  shall 
be  observed. 

895).  ART.  977.  If  within  the  term  referred  to  in  article  970,  any  of 
the  parties  should  request  that  evidence  be  taken,  the  cause  shall  be 
submitted  for  evidence  for  a  term  of  twenty  days. 

896).  ART.  978.  The  provisions  of  articles  958,  959,  and  960,  are  com- 
mon to  this  chapter,  with  regard  to  evidence  to  be  taken  in  a  foreign 
country  or  within  the  Republic  at  a  distance  of  more  than  50  miria- 
meters  from  the  residence  of  the  Court ;  but  the  petition  for  a  term  in 
such  cases  must  be  made  during  the  first  half  of  the  probatory  term  in 
the  second  instance. 

897).  ART.  979.  Upon  the  expiration  of  the  probatory  term,  the 
Secretary  shall  so  inform  the  Justice  taking  cognizance  of  the  case, 
transferring  the  record  to  his  office.  From  this  stage  on,  the  provisions 
of  articles  972  to  976  shall  be  observed. 

898).  ART.  980.  If  nullities  shall  have  been  pleaded,  or  appear  on  the 
face  of  the  process,  the  Court  shall  first  pass  thereon  at  any  stage  of  the 
cause,  and  in  accordance  with  the  provisions  of  Title  VIII  of  this  Book. 

The  following  articles,  ordinal  arts.  899  to  917,  subrogate  all  the  pre- 
ceding articles  of  this  Chapter: 

899) .  ART.  1 5 1  of  Law  105  of  1 890.  Upon  the  receipt  by  the  Supreme 
Court  or  a  Superior  District  Tribunal,  of  a  record  upon  an  appeal  from 
or  consultation  upon  a  definitive  judgment  in  first  instance,  and  the 
assignment  having  been  made,  the  Justice  taking  cognizance  thereof 
shall  direct  that  it  be  referred  to  the  respective  Agent  of  the  Depart- 
ment of  Public  Prosecution  for  five  days,  in  cases  in  which  the  Nation 
or  another  political  entity  should  be  interested,  in  order  that  within  such 


*  This  amendment  takes  the  place  of  the  twenty-ninth  amendment  of  Law  46  of 
i  876,  which  empowered  the  Supreme  Court  to  make  as  many  orders  in  furtherance 
of  justice  as  it  might  deem  proper. 


1 70 

term  he  may  state  whether  or  not  he  has  evidence  to  submit  in  the 
second  instance. 

900).  ART.  152  of  Law  105  of  1890.  For  the  term  of  five  days, 
referred  to  in  the  preceding  article,  the  other  parties  shall  be  informed 
by  edict  of  the  receipt  of  the  record  by  the  Supreme  Court  or  the  re- 
spective Superior  District  Tribunal,  for  the  same  purpose  as  that  stated, 
with  regard  to  the  Department  of  Public  Prosecution,  at  the  close  of  the 
preceding  article ;  the  Justice  hearing  the  case  shall  likewise  embody  such 
a  provision  in  his  first  order. 

During  the  term  of  the  edict  the  record  shall  be  open  to  inspection  in 
the  office  of  the  respective  agent  of  the  Department  of  Public  Prosecu- 
tion, to  any  of  the  other  parties  who  may  request  it,  but  without  its 
removal  therefrom  being  permitted. 

901. 

901).  ART.  153  of  Law  105  of  1890.  If  private  individuals  only 
should  be  interested  in  the  suit,  the  Justice  taking  cognizance  of  the 
cause  shall  direct  that  an  edict  be  posted  for  five  days,  advising  the 
parties  of  the  receipt  of  the  record  in  order  that  they  may  state  whether 
they  have  any  evidence  to  submit  during  such  term ;  and  in  such  case 
the  parties  shall  examine  the  record  in  the  office  of  the  respective 
Secretary. 

902).  ART.  154  of  Law  105  of  1890.  Upon  the  expiration  of  the  five 
days,  if  the  record  shall  have  been  returned  by  the  Department  of 
Public  Prosecution,  the  Secretary  shall  transfer  it  to  the  office  of  the 
Justice  hearing  the  case  with  the  petitions  that  both  the  Department  of 
Public  Prosecution  and  the  other  parties  may  have  submitted  during 
such  term. 

899,  900,  901,  903,  second  par. 

903).  ART.  155  of  Law  105  of  1890.  If  none  of  the  parties  should  have 
requested  that  the  case  be  submitted  for  evidence,  the  record  shall  be 
ordered  delivered  to  the  parties,  for  six  days  each,  in  order  that  they 
may  plead  in  writing. 

If  the  number  of  parties  should  exceed  three,  the  record  shall  be  kept 
in  the  office  of  the  Secretary  for  a  term  of  eighteen  days,  at  the  disposal 
of  the  persons  interested  in  order  that  they  may  examine  it. 

904) .  ART.  1 56  of  Law  105  of  1 890.  Upon  the  expiration  of  the  terms 
for  the  written  pleadings,  citation  for  judgment  shall  issue,  and  the  said 
order  shall  fix  a  day  for  the  public  hearing,  at  which  written  pleadings 
may  also  be  submitted.  The  date  therefore  cannot  be  less  than  four 
nor  more  than  eight  days,  from  the  date  of  the  citation  for  judgment. 

903.     Amended  by  Law  169  of  1896,  article  2 1 . 


905).  ART.  157  of  Law  105  of  1890.  Within  thirty  days  after  the  last 
of  the  pleadings  in  the  court  room  (en  estrados),  judgment  shall  be 
rendered,  affirming,  revoking  or  amending  that  at  first  instance,  accord- 
ing as  to  whether  such  judgment  does  or  does  not  conform  to  the  law  and 
the  merits  of  the  case. 

33>  334- 

906) .  ART.  158  of  Law  105  of  1890.  Upon  the  date  set  for  the  hearing 
it  shall  be  opened  by  causing  the  judgment  appealed  from  or  consulted 
upon  to  be  read  by  the  Secretary.  Thereupon  the  Justice  presiding 
shall  permit  the  appellant  to  address  the  court,  and  then  the  opposing 
party,  until  both  shall  have  spoken  twice.  If  both  parties  should  have 
appealed  from  the  judgment  at  first  instance,  the  plaintiff  in  the  suit 
shall  speak,  and  then  the  defendant. 

907.  ART.  159  of  Law  105  of  1890.  If  within  the  term  of  five  days 
referred  to  in  article  153,*  the  parties  or  any  of  them  should  request 
that  the  proceedings  be  submitted  for  the  taking  of  evidence,  a  decree 
to  this  effect  shall  be  issued  for  a  term  not  to  exceed  twenty  days. 

908).  ART.  1 60  of  Law  105  of  1890.  The  provisions  of  articles  958, 
959  and  960, f  of  the  Judicial  Code,  are  common  to  the  provisions  of  this 
Chapter,  with  regard  to  the  testimony  to  be  taken  in  a  foreign  country 
or  within  the  Republic,  at  a  distance  of  more  than  fifty  miriameters 
from  the  residence  of  the  Court  or  of  the  Tribunal ;  but  the  petition  for 
a  term  in  such  cases  must  be  made  during  the  first  half  of  the  probatory 
term  in  the  second  intsance. 

909).  ART.  161  of  Law  105  of  1890.  Upon  the  expiration  of  the 
probatory  term,  the  Secretary  shall  so  inform  the  Judge  taking  cogni- 
zance of  the  matter,  placing  the  record  at  his  disposal. 

910).  ART.  162  of  Law  105  of  1890.  Upon  the  termination  of  the 
probatory  term,  the  Supreme  Court  and  the  Superior  Tribunals  have  the 
power  to  make  an  order  in  furtherance  of  justice,  for  the  purpose  of 
elucidating  the  points  which  they  may  deem  doubtful,  and  for  the  pur- 
pose of  supplementing  the  evidence  in  order  that  right  may  not  be 
sacrificed  to  forms.  After  compliance  in  all  its  parts  with  the  order  in 
furtherance  of  justice  in  the  proceedings,  another  order  of  this  kind  can- 
not be  made  in  the  same  proceedings,  unless  new  facts  which  it  is  neces- 
sary to  prove  and  which  may  have  been  suggested  by  the  execution  of 
the  first  order  named,  should  appear. 

Subrogated  by  the  following : 

911).  ART.  1 8  of  Law  100  of  18924    The  Supreme  Court  of  Justice  and 

*  Ordinal  901. 
t  Ordinals  876,  877,  878. 

J  This  article  subrogates  ordinal  art.  910.      Both  910  and  911  were  subrogated  by 
rt.  31  of  Law  169  of  1896. 


4-    -LUIS  tti  mjic  t>uuiuga,Lct 

art.  31  of  Law  169  of  1896. 


172 

the  Superior  Tribunals  may,  before  rendering  judgment,  make  an  order 
in  furtherance  of  justice,  for  the  purpose  of  elucidating  points  which  they 
may  consider  doubtful  and  which  it  may  be  advisable  to  clear  up.  Upon 
the  said  order  having  been  executed,  another  such  order  cannot  be  made, 
unless  new  facts  shall  appear  which  may  have  been  suggested  by  the 
execution  of  the  first  order  made. 

912).  ART.  19  of  Law  100  of  1892.  The  order  in  furtherance  of  justice 
may  be  made  in  any  case  in  which  a  definitive  judgment  upon  a  matter 
of  contentious  jurisdiction  is  to  be  rendered,  or  when,  a  judgment  hav- 
ing been  invalidated  by  reason  of  an  appeal  for  annulment  of  judgment 
(recur so  de  casacion),  it  shall  be  necessary  for  the  (Supreme)  Court  to 
render  a  judgment  to  replace  that  of  the  Tribunal. 

913).  ART.  163  of  Law  105  of  1890.  The  proceedings  which  an  order 
in  furtherance  of  justice  may  decree,  shall  be  had  with  a  citation  of  the 
parties,  in  order  that  within  a  term  of  twenty-four  hours  they  may  ad- 
duce counter  evidence.  Such  counter  evidence  and  the  proceedings 
decreed,  shall  be  had  within  ten  days,  in  addition  to  double  the  term 
for  the  distance,  if  to  be  had  outside  of  the  place  where  the  proceedings 
are  being  held. 

1 60 1. 

Amended  by  the  following : 

914).  ART.  20  of  Law  100  of  1892.  The  order  in  furtherance  of  justice 
interrupts  the  term  for  judgment,  for  not  more  than  twenty  days,  in 
addition  to  double  the  term  for  the  distance,  when  proceedings  are  to  be 
had  in  a  place  outside  of  the  place  where  the  proceedings  are  being  held. 

The  counter  evidence  referred  to  in  article  163  of  Law  105  of  1890, 
shall  be  taken  within  the  term  referred  to  in  this  article. 

915).  ART.  164  of  Law  105  of  1890.  If  no  order  in  furtherance  of 
justice  should  be  made,  or  in  the  event  that  such  order  having  been  made 
the  testimony  ordered  by  the  Court  or  the  Superior  Tribunals  shall  have 
been  taken,  the  provisions  of  articles  155  to  158*  of  this  Law  shall  be 
observed. 

91 1  to  914. 

916).  ART.  165  of  Law  105  of  1890.  If  nullities  shall  have  been 
pleaded,  or  if  they  should  appear  on  the  face  of  the  record,  the  Court  or 
the  Superior  Tribunals  shall  first  decide  thereon,  at  any  stage  of  the 
cause,  in  accordance  with  the  provisions  of  Title  VIII  of  this  Law. 

917).  ART.  1 66  of  Law  105  of  1890.  If  an  appeal  for  annulment  of 
judgment  should  be  interposed  in  due  time  from  a  definitive  judgment 
in  second  instance  rendered  by  a  Superior  District  Court,  it  shall  be 
allowed,  heard  and  decided  in  accordance  with  the  provisions  or  articles 
366  to  387  of  this  Law. 

*  Ordinals  903  to  906. 


173 


TITLE  X. 

Ordinary  Actions  upon  Private  Interests. 

CHAPTER  I. 
Preliminary  provisions, 

918).  ART.  981 .  Suits  involving  private  interests,  in  which  no  interest 
of  the  Nation  is  at  stake,  and  of  which  the  Prefects  and  Corregidores  of 
the  national  Territories  take  cognizance,  are  divided  into  actions  of 
greater  and  lesser  import.  The  former  are  those  in  which  the  principal 
involved  exceeds  three  hundred  pesos ;  and  the  latter  those  which  do  not 
exceed  said  amount.  The  principal  interest  is  considered  the  total  net 
amount  sued  for. 

919).  ART.  982.  Suits  upon  complaints  of  greater  import  shall  be 
heard  by  the  Prefects  in  the  manner  provided  in  Chapter  i ,  of  the  pre- 
ceding Title,  with  regard  to  suits  in  which  the  Nation  has  an  interest. 

920).  ART.  983.  In  case  of  an  appeal,  which  is  the  only  case  in  which 
the  Federal  Supreme  Court  can  take  cognizance  of  the  rulings  and  judg- 
ments from  which  an  appeal  lies  rendered  by  Prefects  in  the  said  suits 
upon  complaints  of  greater  import,  said  Tribunal  shall  hear  and  decide 
the  appeal  as  provided  in  Chapter  II  of  the  preceding  Title,  for  actions 
of  a  national  character. 

In  the  said  actions  between  private  individuals,  a  consultation  does 
not  lie  in  any  case,  nor  shall  the  Department  of  Public  Prosecution  take 
part  therein. 

921).  ART.  984.  In  actions  upon  complaints  of  lesser  import,  the 
Corregidores  and  Prefects  shall  conform  to  the  provisions  of  the  follow- 
ing Chapter. 

922).  ART.  985.  The  records  in  the  actions  referred  to  in  this  Title 
must  be  kept  upon  common  paper. 

CHAPTER  II. 
Ordinary  Actions  upon  a  complaint  of  lesser  import. 

923).  ART.  986.  Complaints  of  lesser  import  shall  be  made  verbally 
to  the  Corregidor  of  competent  jurisdiction,  according  to  the  general 
rules  governing  jurisdiction  and  competency. 

This  jurisdiction  of  the  Corregidores  is  exclusively  vested  in  them 
(privativa) . 

924).  ART.  987.  The  complaint  having  been  made,  a  statement 
thereof  shall  be  written,  showing:  i.  The  names  of  the  defendant  and 


174 

the  complaint;  2.  The  thing,  amount  or  act  the  subject  of  the  suit;  and 
3.  The  reason  for  or  the  right  under  which  suit  is  brought. 

In  the  said  statement  or  entry,  the  Corregidor  shall  direct  that  the 
defendant  be  cited  to  appear  to  make  answer  to  the  complaint  upon  the 
day  and  at  the  hour  he  may  fix  therefor. 

The  time  for  such  appearance  shall  be  fixed,  taking  into  consideration 
the  distance  at  which  the  defendant  may  be,  and  the  nature  and  urgency 
of  the  complaint. 

The  complaint  shall  be  served  in  the  manner  established  by  Chapter 
6,  Title  I  of  this  Book. 

194  et  seq.,  1601. 

925).  ART.  988.  If  any  of  the  parties  should  legitimately  excuse  him- 
self from  appearing  on  the  day  fixed  to  answer  the  complaint,  the  Cor- 
regidor shall  set  a  new  day  after  the  cessation  of  the  impediment,  and 
both  parties  shall  be  advised  thereof.  But  if  the  impediment  which  the 
party  may  suffer  from  preventing  his  appearance  should  permit  him  to 
grant  a  power  of  attorney,  he  must  make  answer  to  the  complaint 
through  an  attorney  in  fact. 

926) .  ART.  989.  On  the  arrival  of  the  day  and  hour  set  for  the  appear- 
ance of  the  parties,  if  the  complainant  should  fail  to  enter  an  appearance 
without  a  just  excuse,  and  the  defendant  should  appear,  the  latter  shall 
not  be  obliged  to  answer  the  complaint,  and  the  Corregidor  shall  tax  the 
costs  of  the  appearance  of  the  defendant  against  the  plaintiff,  the  amount 
thereof  being  estimated  by  such  defendant  under  oath,  and  regulated  by 
the  Corregidor,  if  he  should  consider  them  excessive. 

927).  ART.  990.  If  the  defendant  should  fail  to  appear  on  the  day  and 
the  hour  set  for  the  answer  to  the  complaint,  the  plaintiff  may  have 
recourse  to  the  way  of  assent  or  proof  in  default,  at  his  option,  and  in 
terms  expressed  in  the  respective  Chapter. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated 
by  the  following : 

928).  ART.  167  of  Law  105  of  1890.  If  the  defendant  in  an  ordinary 
action  upon  a  complaint  of  lesser  import,  should  fail  to  appear  upon  the 
day  and  at  the  hour  set  for  the  answer  to  the  complaint,  or  if  he  should 
appear  and  refuse  to  answer,  the  Judge  shall  avail  himself  of  the  com- 
pulsory process  provided  for  in  article  334*  of  this  Law.  If  even  after 
the  employment  of  such  process  the  complaint  should  not  be  answered, 
the  Judge  shall  sumbit  the  cause  for  the  taking  of  evidence  in  order  that 
the  parties  may  present  such  proof  as  they  may  deem  advisable ;  and  he 
shall  in  due  time  render  judgment  in  view  of  the  pleadings  and  evidence 
sentencing  the  defendant,  for  failure  to  make  answer  to  tlu-  complaint, 

*  Ordinal  1604. 


to  pay  a  fine  of  ten  to  one  hundred  pesos  if  the  judgment  should  be  for 
the  plain  tiff. 

857- 

929) .  ART.  991 .  In  complaints  not  involving  more  than  twenty  pesos, 
upon  the  appearance  of  the  parties  the  Corregidor  shall  hear  both,  shall 
examine  the  witnesses  they  may  produce,  shall  consider  the  other  evi- 
dence and  the  reasons  they  may  adduce,  and  shall  render  judgment  at 
once,  which  judgment  shall  be  entered  immediately  after  the  complaint 
and  a  brief  statement  of  all  the  proceedings  had,  the  Corregidor,  the 
parties  and  the  Secretaries  signing  the  same.  From  this  judgment  no 
remedy  lies  excepting  a  complaint,  and  it  becomes,  therefore,  final,  upon 
notification  thereof  to  the  parties. 

930).  ART.  992.  The  proceedings  in  the  actions  referred  to  in  the 
preceding  article,  shall  be  written  in  a  book  composed  of  common  paper, 
foliated  and  rubricated  upon  each  page  by  the  Corregidor  and  his  Secre- 
tary. The  parties  shall  be  given  such  copies  of  said  record  as  they  may 
request,  upon  the  order  of  the  Corregidor. 

931).  ART.  993.  In  actions  involving  more  than  twenty  pesos,  if 
upon  answer  to  the  complaint,  there  should  be  no  facts  to  be  proved, 
judgment  shall  be  rendered,  after  citation  of  the  parties,  within  six  days 
after  the  date  of  the  answer. 

If  there  should  be  facts  to  prove,  and  any  of  the  parties  should  state 
that  he  has  evidence  which  he  wishes  to  introduce,  the  Corregidor  shall 
grant  for  the  purpose  a  term  of  eight  days,  which  may  be  extended  the 
time  necessary  for  the  round  trip,  if  the  testimony  is  to  be  taken  in 
another  place ;  the  Corregidor  shall  for  this  purpose  conform  to  the  pro- 
visions of  articles  957  and  958*  regarding  ordinary  actions  of  greater 
import;  but  in  no  case  shall  the  probatory  term  granted  and  ex- 
tended exceed  one  month. 

14. 

932).  ART.  994.  Upon  the  expiration  of  the  probatory  term,  the  Cor- 
regidor shall  at  once  set  one  of  the  three  days  following  with  a  statement 
of  the  hour  for  hearing  or  receiving  the  arguments  which  the  parties 
may  wish  to  present  orally  or  in  writing.  If  they  should  plead  orally, 
the  hearing  can  in  no  case  exceed  three  days,  three  hours  per  day. 

933).  ART.  995.  The  same  order  setting  a  day  for  the  arguments, 
shall  cite  for  judgment,  which  judgment  shall  be  rendered  within  the 
six  days  following  the  last  of  the  arguments. 

333,  334- 

*  Ordinals  875  and  876. 


1 76 

934) .  ART.  996.  In  the  said  actions  involving  more  than  twenty  pesos, 
even  though  they  should  be  heard  orally,  minutes  shall  be  made  of  all 
the  proceedings  had,  which  minutes  shall  be  signed  by  the  Corregidor, 
his  Secretary  and  the  parties.  The  Judgment  shall  be  written  im- 
mediately thereafter,  which  after  having  been  signed  by  the  Corregidor 
and  his  Secretary  shall  be  served  upon  the  parties. 

935).  ART.  997.  The  judgments  which  the  Corregidor  may  render 
upon  the  complaints  exceeding  twenty  pesos  in  interest,  may  be  appealed 
from  to  the  Prefect  of  the  Territory  which  appeal  may  be  interposed 
at  the  time  of  receiving  notice,  or  within  forty-eight  hours  thereafter. 

936).  ART.  998.  If  the  Corregidor  should  deny  the  appeal,  the  ag- 
grieved party  may  apply  for  a  writ  of  certiorari  (ocurrir  de  hecho)  to  the 
Prefect  in  the  terms  prescribed  in  Chapter  2,  Title  VII  of  this  Book. 

937).  ART.  999.  The  appeal  having  been  allowed,  the  Corregidor,  after 
citation  of  the  parties,  shall  send  the  original  record  to  the  Prefect  on  or 
before  the  second  day,  if  the  latter  should  reside  in  the  same  place,  or 
by  the  first  mail  at  the  cost  of  the  appellant,  if  he  should  reside  in  another 
place. 

938).  ART.  looo.  Upon  the  receipt  of  the  record  in  the  office  of  the 
Prefect,  the  Prefect  shall  set  a  day  and  hour  to  hear  and  receive  the 
arguments  of  the,  parties,  the  latter  being  permitted,  in  the  meantime, 
to  introduce  such  evidence  as  they  may  deem  advisable. 

The  day  for  the  arguments  shall  be  one  of  the  six  following.* 

939).  ART.  1001.  In  the  event  of  a  petition  for  a  writ  of  certiorari 
(recur so  de  hecho),  if  it  should  be  granted,  the  Prefect. shall  address  a 
communication  to  the  Corregidor  directing  him  to  forward  the  record, 
after  citation  of  the  parties,  in  order  that  they  may  enter  an  appearance 
before  the  Prefect. f 

940).  ART.  1 002.  The  Prefect  shall  render  judgment  within  six 
days  after  the  last  argument.  J 

941).  ART.  1003.  If  the  parties  should  plead  orally,  the  hearing  can- 
not cover  more  than  three  days  and  three  hours  each  day.§ 

942).  ART.  1004.  Against  the  decision  of  the  Prefect  there  shall  be  no 
remedy  except  a  complaint,  it  becoming,  consequently,  final  upon  the 
parties  being  notified  thereof.! 

943).  ART.  1005.  The  judgment  having  been  rendered  in  the  second 
instance,  the  Prefect  shall  return  the  original  record  to  the  Corregidor 
who  rendered  the  decision  in  the  first  instance,  retaining  a  full  copy 

*  The  procedure  established  by  this  article  and  the  following  of  this  Chapter,  with 
the  exception  of  articles  1004  and  1007,  ordinal  Nos.  942  and  945.  have  been  substi- 
tuted for  that  provided  in  articles  bearing  ordinal  Nos.  946  to  956. 

t  Subrogated:  See  note  to  preceding  article. 

%  Subrogated:  See  note  to  ordinal  art.  9. vs. 

§  This  article  has  been  neither  subrogated  nor  repealed. 

||  Subrogated :  See  note  to  ordinal  art.  938. 


177 

of  the  judgment  in  the  second  instance  in  a  book  which  the  Secretary 
to  the  Prefect  shall  keep  for  this  purpose.* 

944) .  ART.  1006.  Notice  of  the  judgment  at  second  instance  shall  be 
served  in  the  Office  of  the  Corregidor  who  rendered  the  judgment  in  the 
first  instance,  and  the  original  record  shall  be  filed  there,  of  which,  upon 
the  order  of  the  Corregidor,  such  copies  as  the  parties  may  request  shall 
be  given  them.| 

945) .  ART.  1007.  In  actions  upon  complaints  of  lesser  import,  dilatory 
exceptions  shall  be  passed  on  at  the  same  time  as  the  main  issue,  the 
proper  order  being  observed  in  the  judgment,  so  that,  upon  a  dilatory 
exception  being  established,  the  Corregidor  shall  not  enter  upon  a  dis- 
cussion of  the  main  issue.  J 

The  following  articles,  Nos.  946  to  956  of  order,  subrogate  arts. 
938,  939>  940,  94i>  943,  and  944: 

946).  ART.  168  of  Law  105  of  1890.  Upon  receipt  of  the  process  by 
the  Circuit  Court,  an  order  shall  issue,  within  twenty-four  hours, 
directing  that  the  parties  be  informed  of  the  receipt  of  the  record,  which 
shall  be  made  known  by  edict,  which  shall  be  posted  during  the  working 
hours  of  a  natural  day. 

947).  ART.  169  of  Law  105  of  1890.  If  an  application  for  a  writ  of 
certiorari  shall  have  been  made,  and  the  application  granted,  the 
Circuit  Judge  shall  transmit  a  communication  to  the  District  Judge 
directing  him  to  forward  the  record,  after  citation  of  the  parties,  in  order 
that  they  may  enter  an  appearance  in  the  Circuit  Court. 

948).  ART.  170  of  Law  105  of  1890.  Upon  receipt  of  the  record 
by  the  Circuit  Court,  the  parties  shall  be  notified  thereof,  in  the  terms 
prescribed  by  article  1 68 .  § 

949).  ART.  171  of  Law  105  of  1890.  If  within  three  days  after  the 
notice,  none  of  the  parties  should  request  that  the  cause  be  submitted 
for  evidence,  the  Judge  shall  cite  for  judgment,  which  he  shall  render 
within  the  next  ten  days,  affirming,  amending  or  reversing  that  in  first 
instance,  and  also  adjudging  the  costs,. 

950- 

950).  ART.  172  of  Law  105  of  1890.  If  within  three  days  after  the 
parties  shall  have  been  notified  of  the  receipt  of  the  record,  one  of  them 
should  request  that  the  cause  be  submitted  for  the  taking  of  evidence, 
the  Judge  shall  grant  the  common  period  of  eight  days  and  that  corre- 


*  Subrogated:  See  note  to  ordinal  art.  938. 

t  Subrogated:  See  note  to  ordinal  art.  938. 

J  This  article  has  been  neither  repealed  nor  subro gated, 

§  Art.  1 68,  referred  to  herein,  is  ordinal  art.  946, 


1 78 

spending  to  the  distance,  if  the  testimony  is  to  be  taken  outside  the 
place  where  the  action  is  being  prosecuted. 

1601. 

951).  ART.  173  of  Law  105  of  1890.  Within  the  probatory  term,  each 
party  may  introduce  or  request  such  evidence  as  he  may  deem  advisable, 
and  the  Judge  shall  order  it  taken,  citing  the  opposite  party. 

952).  ART.  174  of  Law  105  of  1890.  Upon  the  expiration  of  the  pro- 
batory term,  the  judge  shall  order  that  the  record  be  referred  to  the 
parties,  for  four  days  to  each,  in  order  that  they  may  make  their 
closing  arguments. 

953).  ART.  175  of  Law  105  of  1890.  Upon  the  expiration  of  the  term 
of  reference,  citation  for  judgment  shall  issue,  and  within  the  next  ten 
days  judgment  shall  be  rendered,  affirming,  amending  or  reversing  that 
in  the  first  instance,  and  adjudging  the  costs. 

333,  334- 

954).  ART.  176  of  Law  105  of  1890.  If  a  plea  of  nullity  should  be  made 
in  these  actions  in  the  second  instance,  a  decision  thereon  shall  first  be 
made.  Otherwise  they  may  be  annulled  only  by  reason  of  illegitimacy, 
representation  and  lack  of  jurisdiction. 

955).  ART.  177  of  Law  105  of  1890.  After  the  appeal  shall  have  been 
decided  by  the  Circuit  Judge,  or  the  process  annulled  and  the  decision 
published,  all  the  proceedings  had  shall  be  sent  to  the  Judge  of  first  in- 
stance, a  copy  being  retained  of  the  judgment  in  a  book  which  shall  be 
kept  for  the  purpose  by  the  Secretary  of  the  Circuit  Court. 

956).  ART.  178  of  Law  105  of  1890.  In  the  office  of  the  Judge  who 
rendered  the  judgment  in  the  first  instance,  notice  of  that  in  the  second 
instance  shall  be  served,  and  the  original  record  shall  be  filled  in  such 
office,  of  which  record,  upon  the  order  of  the  Judge,  such  copies  shall  be 
issued  as  the  parties  may  request. 


179 

TITLE  XI. 

Special  Actions. 

CHAPTER  i. 

FIRST  SECTION. 

Executory  Actions. 

957).  ART.  1008.  When  a  legitimate  party  shall  present  to  a  Judge 
of  competent  jurisdiction  a  document  or  judicial  act  of  those  which  in 
accordance  with  this  Code,  carry  execution  and  a  request  is  made  for 
execution  to  issue  to  enforce  the  obligation  expressed  therein,  the  Judge, 
without  either  citing  or  hearing  the  debtor,  must  cause  it  to  issue  within 
twenty-four  hours. 

333- 

THIRTIETH  AMENDMENT. 
(Of  Law  46  of  1876.) 

958).  ART.  1009.  For  all  legal  purposes  an  executory  action  shall  be 
understood  to  exist  from  the  time  the  debtor  is  served  with  the  wrrit  of 
execution  until  payment  is  made  to  the  creditor,  or  notice  is  served  of 
the  definitive  judgment  directing  the  absolute  cessation  of  the  execution. 

959).  ART.  1010.  The  following  documents  carry  execution : 

1 .  A  final  judgment. 

2.  A  judgment  which,  although  from  its  nature  does  not  carry  execu- 
tion, must  be  executed  notwithstanding  an  appeal,  by  reason  of  the  latter 
having  been  granted  in  a  devolutive  effect  only. 

3 .  Writs  issued  in  legal  form  by  the  Federal  Supreme  Court  and  by  the 
Courts  of  First  Instance,  for  the  execution  of  a  judicial  act. 

4.  Public  instruments. 

5.  Bills  of  exchange  against  the  acceptors,  against  the  endorsers,  or 
against  the  drawers  in  their  respective  cases,  according  to  the  Code  of 
Commerce. 

6.  Notes  or  simple  I.  O.  U's,  and  in  general  private  documents  ac- 
knowledged by  the  debtor  in  legal  form,  or  recorded  in  the  puplic  regis- 
tration office  by  the  debtor  himself ;  and 

7.  A  judicial  confession  made  before  the  Judge  of  competent  jurisdic- 
tion. 

This  article  has  been  expressly  repealed  by  article  338  of  I^aw  105 
of  1890,  and  subrogated  by  the  following: 


i8o 

960).  ART.  179  of  Law  105  of  1890.  The  following  judicial  acts  and 
documents  carry  execution : 

1.  A  final  judgment,  with,  the  requisites  determined  by  article  828  of 
the  Judicial  Code.* 

50  second  par.,  691,  692,  1446;  Law  169  of  1896,  article  23,  which 
supplements  this  article,  and  art.  261,  second  par.  of  Book  III- 

2.  A  judgment  which,  although  from  its  nature  does  not  carry  execu- 
tion, must  be  executed  notwithstanding  an  appeal,  by  reason  of  the 
latter  having  been  granted  in  a  devolutive  effect  only. 

689. 

3.  Writs  issued  in  a  legal  form  by  the  Supreme  Court,  the  Superior 
Tribunals  and  the  Courts  of  First  Instance,  for  the  execution  of  a  judicial 
act. 

4.  Public  Instruments. 

5.  Bills  of  exchange  against  the  acceptors,  against  the  endorsers  or 
against  the  drawers,  in  their  respective  cases,  according  to  the  Code  of 
Commerce. 

965 .     830  to  834  of  the  Code  of  Commerce. 

6.  Notes  or  simple  I.  O.  U's,  and  in  general  private   documents  ac- 
knowledged by  the  debtor  in  legal  form,  or  recorded  in  the  public  regis- 
tration office  by  the  debtor  himself ;  and 

530.  539,  544- 

7.  A  judicial  confession  made  before  the  Judge  of  competent  juris- 
diction. 

385,  964,  1083,  1065,  1059,  1060.     Law  169  of  1896,  art.  34. 

961.  ART.  ion.  In  order  that  the  said  documents  may  carry  execu- 
tion, they  must  be  drawn  and  written  with  the  legal  formalities,  and 
those  which  require  registration  in  accordance  with  the  laws,  must 
furthermore,  be  recorded. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

962).  ART.  1 80  of  Law  105  of  1890.  In  order  that  the  said  acts  and 
documents  may  carry  execution  they  must  be  drawn  and  written  with 
the  legal  formalities,  and  those  which  require  registration  in  accordance 
with  the  laws,  must,  furthermore  be  recorded  . 

2652  of  the  Civil  Code. 
*  Art.  828  of  the  Judicial  Code  is  ordinal  art.  691 


963).  ART.  1012.  Such  documents  do  not  import  a  confession  of  judg- 
ment, excepting  in  so  far  as  an  express,  clear  and  past  due  obligation 
results  therefrom,  to  pay  a  net  sum,  or  to  deliver  or  do  a  specific 
thing. 

By  net  amount  is  understood  that  which  can  be  expressed  by  a  de- 
terminate figure  without  being  subject  to  indeterminate  although  certain 
deductions. 


THIRTY-FIRST  AMENDMENT. 
(Of  Law  46  of  1876.) 

964).  ART.  1013.  The  following  documents  also  carry  execution  in 
actions  brought  by  the  Agents  of  property  relieved  from  incumbrance 
against  tardy  debtors: 

i.  Any  authentic  copy  of  a  public  instrument  which  has  not  been 
cancelled,  establishing  the  debt  and  the  conditions  of  payment  thereof. 

2  .  Any  private  document  judicially  acknowledged  by  the  debtor. 

3.  All  accounts  against  debtors  to  the  branch  that  may  be  liqui- 
dated by  the  Agents,  reference  being  previously  made  to  the  en- 
tries in  the  registry,  and  provided  always  that  these  were  based 
upon  information  furnished  by  prior  usufructuaries,  or  by  prior  en- 
tries appearing  in  the  respective  archives. 

960,  1083. 

965).  ART.  1014.  In  order  that  a  bill  of  exchange,  draft  or  note  en- 
dorsed may  carry  execution,  it  shall  be  sufficient  that  his  signature  be 
acknowledged  by  the  party  against  whom,  in  a  proper  case,  it  may  be 
necessary  to  employ  executory  process;  but  if  within  the  proper  term 
the  execution  debtor  should  oppose  an  exception  of  falsity  of  one  of  the 
endorsements,  the  genuineness  of  such  endorsement  must  be  established 
by  the  plaintiff  within  the  probatory  term  granted  in  such  an  action. 

960  subdivision  5.     830  to  836  of  the  Code  of  Commerce. 

966).  ART.  1015.  The  decree  or  writ  of  execution  must  contain: 

1  .  The  order  of  payment  by  executory  process,  with  a  statement  of 
the  net  amount  of  the  debt  ;  and 

2  .  The  intimation  of  the  debtor  to  appoint  in  due  time  a  depositary 
and  appraisers  of  the  property  belonging  to  him  which  is  to  be  attached, 
with  a  notice  that  if  he  fails  to  appoint  them  upon  notification,  or 
appoints  absent  individuals,  or  persons  who  cannot  or  do  not  wish  to 
accept,  the  Judge  of  the  cause,  or  the  commissioner,  in  a  proper  case, 
will  appoint  them. 


1 82 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

967).  ART.  181  of  Law  105  of  1890.  The  decree  or  writ  of  execution 
must  contain : 

1 .  The  order  of  payment  by  executory  process,  with  a  statement  of 
the  net  amount  of  the  debt ;  and 

2.  An  intimation  to  the  debtor  to  appoint  in  due  time  a  depositary 
and  an  appraiser  of  the  property  belonging  to  him  which  is  to  be  attached, 
with  a  notice  that  if  he  fails  to  appoint  them  upon  notification,  or 
appoints  absent  individuals,  or  persons  who  do  not  wish  to  or  cannot 
accept,  the  Judge  of  the  cause  or  the  commissioner,  in  a  proper  case,  will 
appoint  them. 

976,  977,  979,  987,  1003  to  1008. 

968).  ART.  1016.  Whenever  execution  is  requested  by  virtue  of  a 
document  which  entitles  to  interest  upon  the  sum  for  which  it  has  been 
drawn,  either  by  agreement  or  by  provision  of  law,  execution  shall  issue 
for  the  principal  and  interest  to  the  day  of  payment,  after  the  liquida- 
tion of  the  interest  by  the  Judge  of  the  cause  or  the  commissioner  in  a 
proper  case. 

15 

969).  ART.  1017.  When  the  obligation  to  be  executed  is  to  deliver  a 
determinate  thing,  the  creditor  on  requesting  the  execution  must  under 
oath  estimate  the  damages  which  he  may  suffer  in  the  event  of  the  non- 
delivery of  the  thing ;  and  the  Judge  shall  direct : 

1 .  That  the  execution  debtor  deliver  at  once  the  thing  demanded  of 
him. 

2.  That  if  he  does  not  deliver  it,  if  it  should  be  in  his  possession,  the 
said  thing  be  attached  and  deposited,  and  in  addition,  sufficient  prop- 
erty to  cover  the  costs ;  and 

3.  That  if  the  thing  should  not  be  in  possession  of  the  execution 
debtor,  it  be  attached  in  the  possession  of  whosoever  may  have  it,  or 
sufficient  property  be  attached  to  cover  the  value  of  the  damages  in- 
curred by  the  failure  to  deliver  said  thing,  at  the  option  of  the  execution 
creditor. 

Expressly  repealed  by  art.  338  of  Law  105,  and  subrogated  by  the 
following : 

970).  ART.  182  of  Law  105  of  1890.     When  the  obligation  to  l>» 
cuted  is  to  deliver  a  determinate  thing,  the  creditor,  on  requesting  tin- 
execution,  must  under  oath  estimate  the  damages  which  he  may  suffer 
in  the  event  of  the  non-delivery  of  the  thing ;  and  the  J  udge  shall  direct : 

i.  That  the  execution  debtor  deliver  at  once  the  thing  demanded  ol 
him; 


2.  That  if  he  does  not  deliver  it,  if  it  should  be  in  his  possession,  that 
the  said  thing  be  attached  and  deposited,  and,  in  addition  sufficient 
property  to  cover  the  costs ;  and 

3.  That  if  the  thing  should  not  be  in  the  possession  of  the  execution 
debtor,  sufficient  property  be  attached  to  cover  the  value  of  the  damages 
incurred  by  the  non-delivery  thereof. 

If  the  thing  should  be  in  the  possession  of  a  third  person,  it  may  be 
attached  if  the  execution  creditor  gives  bond  to  answer  for  the  damages 
which  the  real  owner  of  the  thing  may  suffer,  if  it  be  decided  that  it 
belongs  to  said  third  person. 

984,  903  to  1 002. 

971).  ART.  1018.  If  the  obligation  should  be  to  do  something  or  per- 
form a  determinate  act,  the  damages  shall  be  estimated  under  oath,  as 
in  the  case  of  the  preceding  article,  which  may  be  incurred  through  the 
non-performance  of  said  obligation,  and  the  execution  creditor  may  de_ 
mand  one  of  two  things,  at  his  option :  either  the  performance  of  the  act 
by  the  debtor,  or  indemnity  for  the  damages  caused  by  the  violation  of 
the  contract. 

If  the  former  should  be  demanded,  the  Judge  in  issuing  the  execution 
shall  fix  a  reasonable  term  for  the  performance  of  the  obligation,  and 
shall  order  that  in  the  event  of  its  non-performance  within  this  term  by 
the  execution  debtor,  property  of  his  be  attached  in  order  to  cover  with 
the  value  thereof  the  damages  estimated  by  the  execution  creditor. 

If  the  latter  should  be  demanded,  the  execution  must  be  issued 
directly  for  the  payment  of  the  amount  at  which  the  damages  may  have 
been  estimated,  there  being  taken  into  consideration  in  the  regulation 
which  may  be  made  of  such  damages,  in  accordance  with  the  following 
articles,  that  if  the  act  could  still  be  executed,  or  the  thing  be  done  at  the 
time  the  execution  was  requested,  the  indemnity  must  be  reduced  to 
what  said  thing  would  cost  through  a  third  person,  and  to  the  damages 
arising  from  the  delay. 

In  the  event  that  the  execution  creditor  should  request  the  perfor- 
mance of  the  act  or  principal  obligation,  he  may  also  demand  the  indem- 
ity  for  the  damages  which  may  be  caused  him  by  the  delay  to  the  day 
upon  which  it  may  be  performed,  which  damages  he  shall  estimate  under 
oath,  and  which  the  Judge  must  decree  in  accordance  with  the  provisions 
of  the  first  paragraph  of  article  1015  and  the  first  case  of  this  article.* 

972  to  975. 

*  As  has  been  stated,  article  1015  cited.  Ordinal  art.  966  was  expressly  repealed 
by  art.  338  of  Law  105  of  1890,  and  subrogated  by  ordinal  art.  967,  whose  subdivis- 
ion i,  is  that  applicable. 


184 

972).  ART.  1019!  An  execution  having  been  decreed  for  the  payment 
of  the  damages  estimated  under  oath,  after  service  of  the  writ,  and  the 
attachment  of  property  sufficient  for  the  payment,  and  before  citation 
for  sale  issues,  the  execution  debtor  may  object  to  the  estimation  made 
by  the  creditor,  before  the  Judge  of  the  cause,  and  the  latter  in  such 
case  shall  not  issue  the  citation  for  the  order  of  sale,  until  the  regulation 
referred  to  in  the  following  article  is  made. 

Amended  by  the  following  article: 

973).  ART.  199  of  Law  105  of  1890.  The  objection  referred  to  in 
article  1019*  of  the  Judicial  Code,  may  be  made  as  soon  as  service  of  the 
writ  of  execution  is  made  on  the  debtor.  If  the  objection  should  be 
made,  a  separate  record  shall  be  kept  and  the  course  of  the  action  as  to 
the  principal  matter  shall  not  be  stayed. 

974>  975- 

974).  ART.  1020.  An  objection  having  been  made  by  the  debtor 
against  the  estimation  of  the  damages,  the  Judge  shall  direct  that  they 
be  regulated  by  experts  appointed  by  the  execution  creditor  and  the  exe- 
cution debtor,  or  by  the  Judge,  in  the  terms  prescribed  by  Chapter  VI, 
Title  II  of  this  Book. 

975).  ART.  1021.  The  provisions  of  the  four  preceding  articles  shall 
not  apply  when  in  the  documents  by  virtue  of  which  the  execution  may 
be  decreed,  the  amount  of  damages  to  be  paid  in  the  event  of  the  non- 
delivery of  the  thing,  or  the  non-performance  of  the  act  the  subject  of 
the  obligation,  should  have  been  fixed,  as  in  such  case  what  is  stated 
with  regard  to  said  damages  in  the  document,  must  be  observed. 

976).  ART.  1022.  The  name  of  the  debtor,  which  the  decree  or  writ 
of  execution  must  contain,  shall  be  that  resulting  from  the  document  by 
virtue  of  which  the  writ  issues,  unless  the  obligation  should  arise  from  a 
rent  charge  (censo},  or  it  is  desired  to  foreclose  a  mortagage,  as  in  such 
case  the  execution  debtor  shall  be  the  person  who  may  be  designated 
by  the  execution  creditor,  under  his  lability,  as  the  actual  possessor  of 
the  estate  subject  to  the  rent  charge  or  mortgage,  without  prejudice  to 
the  provisions  of  article  105 1  .f 

967- 

977).  ART.  1023.  For  the  fulfillment  of  the  writ  of  execution,  the 
Judge  of  the  cause  may  commission  a  District  Judge,  excepting  in  the 
case  of  the  following  article : 

980,981. 

*  Ordinal  972. 

f  Art.  1051  referred  to  herein,  is  ordinal  art.  1021. 


978).  ART.  1024.  If  the  creditor,  in  the  petition  requesting  that  his 
debtor  acknowledge  the  document,  should  also  request  that,  upon  its 
acknowledgment,  execution  issue,  the  Judge,  upon  such  acknowledg- 
ment being  made,  without  permitting  the  debtor  to  absent  himself,  shall 
decree  the  execution  if  he  were  of  competent  jurisdiction  and  the  docu- 
ment should  furnish  grounds  therefor,  and  shall  at  once  take  as  many 
other  steps  in  the  executory  proceedings  as  may  be  possible. 

960,  981. 

THIRTY-SECOND  AMENDMENT. 
(Of  Law  46  of  1876.) 

979).  ART.  1025.  The  execution  debtor  may  appeal  from  the  order 
of  execution  in  the  same  proceeding  by  which  notice  is  served  on  him, 
or  in  separate  petition,  within  the  next  forty-eight  hours.  The  appeal 
shall  be  allowed  in  a  devolutive  effect;  but  no  property  shall  be  sold  nor 
any  citation  for  announcement  and  sale  be  issued  before  the  execution 
Judge  shall  receive  the  decision  which  the  superior  may  have  rendered 
by  virtue  of  the  appeal  allowed. 

1070,  1071,  1072,  1024. 

980).  ART.  1026.  If  the  proceedings  mentioned  in  the  following 
article  are  to  be  had  through  a  commissioner,  the  Judge  of  the  cause 
shall  order  that  the  proper  communication  be  issued  at  once,  which  may 
be  delivered  to  the  execution  creditor,  who  without  the  necessity  of  a 
petition,  shall  present  it  to  the  Judge  commissioned. 

The  Judge  issuing  the  commission  shall  fix  the  term  within  which  the 
Judge  commissioned  is  to  execute  his  commission ;  this  term  shall  begin 
to  be  counted  from  the  day  upon  which  the  communication  may  be  pre- 
sented to  the  commissioner,  which  date  shall  be  recorded  by  means  of  a 
note  made  by  the  Secretary,  which  shall  be  subscribed  by  him,  the  exe- 
cution creditor  and  a  witness. 

357- 

981).  ART.  1027.  The  Judge  of  the  cause,  when  acting  in  person,  or  the 
commissioner,  in  a  proper  case,  has  the  following  duties : 

i .  To  personally  notify  the  debtor  of  the  writ  of  execution,  which  pro- 
ceeding shall  be  signed  by  the  execution  Judge,  his  Secretary  and  the 
execution  debtor,  a  witness  doing  so  in  the  place  of  the  latter,  if  he  should 
not  know  how,  not  wish  or  not  be  able  to  sign. 

212,  214,  988. 


i86 

2.  Require  of  the  debtor  that  at  the  time  of  the  notice  he  pay  what  is 
demanded  of  him,  in  accordance  with  the  provisions  of  the  writ  of  exe- 
cution. 

3.  In  the  event  of  non-payment,  to  require  of  the  debtor  that  he  state^ 
under  oath,  whether  or  not  he  has  property  with  which  to  pay  what  he 
may  be  sued  for  and  the  costs  of  the  action,  and  what  property  he  pre- 
sents for  the  purpose. 

4.  If  he  should  present  property,  to  require  him  to  furnish  a  warrantor 
to  the  satisfaction  of  the  creditor. 

982,  983,  984,  986,  1010,  1065,  1 100,  noi. 

5.  To  attach  at  once  the  property  which  the  debtor  may  indicate  in 
the  manner  stated,  deposit  it,  and  cause  it  to  be  appraised  at  the  proper 
time  by  expert  appraisers  appointed  by  the  parties  or  by  the  said  exe- 
cution Judge,  in  accordance  with  the  provisions  of  Chapter  IV,  Title  II, 
of  this  Book. 

1092,  1093,  1098,  1099,  1 102,  1 103,  1 138.     Law  95  of  1890,  art.  42. 

6.  If  the  execution  debtor  should  not  pay  nor  produce  sufficient 
property  to  cover  the  debt  and  the  costs,  furnishing  the  proper  bond,  to 
attach,  deposit  and  direct  the  appraisal  of  the  property  which  the  cred- 
itor may  denounce  as  belonging  to  the  debtor,  first  swearing  not  to  act 
with  malice;  and* 

7 .  To  issue  all  the  orders  necessary  for  the  suspension  of  the  payment 
of  any  salary,  deposit,  pension,  income,  or  amount  due  the  defendant, 
and  which  he  may  have  made  known  or  which  the  creditor  may  have 
given  information  of,  availing  himself  of  the  right  granted  in  the  pre- 
ceding paragraph. 

991,  1 102,  1103. 

The  three  articles  which  follow  are  supplemental,  the  last  being,  in 
addition,  amendatory. 

982).  ART.  183  of  Law  105  of  1890.  The  bond  in  warranty  shall  be 
constituted  in  the  executory  proceedings,  by  means  of  a  certificate  or 
minute  stating  all  that  may  be  pertinent  to  the  case,  signed  by  the 
Judge,  the  surety  and  the  Secretary  of  the  court. 

983).  ART.  184  of  Law  105  of  1890.  The  warrantor  referred  to  in 
subdivision  4  of  article  1027  of  the  Judicial  Code,  shall  be  furnished  to 
the  satisfaction  of  the  Judge  taking  cognizance  of  the  proceedings,  who 
shall  require  the  necessary  evidence  to  establish  that  the  requisites  pre- 
scribed by  the  Civil  Code  are  present  in  the  surety. f 

*  Expressly  repealed  by  art.  338  of  Law  105,  and  subrogated  by  ordinal  ;nt    98  ( 
t  Article  1027  referred  to  herein  is  ordinal  article  981. 


984).  ART.  1 88  of  Law  105  of  1890.  If  the  execution  debtor  should 
not  pay  or  not  produce  sufficient  property  to  cover  the  debt  and  cost, 
furnishing  the  proper  bond,  the  Judge  shall  proceed  to  attach,  deposit 
and  cause  the  appraisal  of  the  property  which  the  creditor,  upon  swear- 
ing not  to  act  with  malice,  shall  denounce  as  the  property  of  the  debtor, 
in  the  event  that  the  property  should  be  in  the  possession  of  the  latter.* 

970  last  par.,  986,  993,  996,  1000,  1031. 

985).  ART.  1028.  In  order  to  estimate  whether  the  property  produced 
or  denounced  is  sufficient  to  cover  the  debt  and  the  costs,  the  Judge  shall 
make  a  reasonable  estimate  of  what  the  costs  may  amount  to  by  the  end 
of  the  proceedings,  reserving  a  final  liquidation  in  due  time. 

He  shall  also  estimate  the  sum  to  which  the  interest,  allowances, 
fruits,  fines  and  other  products  may  amount  which,  as  accessories  or 
principals,  must  be  liquidated  to  the  day  of  payment,  without  prejudice 
to  the  final  liquidation. 

Expressly  .repealed  by  art.  338  of  Law  105  and  subrogated  by  the 
following : 

986).  ART.  185  of  Law  105  of  1890.  The  purpose  of  the  bond  in 
warranty  is  that  the  property  produced  or  denounced  be  estimated  as 
sufficient,  and  that  consequently,  more  property  of  the  debtor  be  not 
attached,  unless  the  creditor  shall  present  evidence  establishing  the  in- 
sufficiency of  such  property.  In  such  case  the  new  property  which  may 
be  denounced  at  any  time  shall  immediately  be  attached,  and  after 
having  been  attached,  the  sufficiency  of  the  property  originally  produced 
or  denounced  shall  be  passed  on  as  an  incidental  issue. 

981,  subdivision  4,  1063,  1119,  1143. 

987).  ART.  1029.  If  the  property  to  be  deposited  should  consist  of 
industrial  establishments  or  estates,  from  the  management  of  which  the 
owner  could  not  be  removed  without  a  serious  disturbance  in  the  works, 
a  receiver  (intern entor}  shall  be  appointed  in  the  place  of  a  depositary. 
Both  the  receiver  and  the  depositary,  shall  perform  the  duties  men- 
tioned in  §  2  of  Chapter  5,  Title  I  of  this  Book. 

967  subdivision^,  1003,  1093. 

988).  ART.  1030.  When  the  execution  shall  issue  against  a  juridical  per- 
son, community,  industrial  or  commercial  company,  against  a  minor  or  an 
absentee  to  whom  a  curator  ad  bona  may  have  been  appointed,  a  spend- 
thrift, an  insane  person  or  one  deaf  and  dumb,  deprived  by  a  judicial 
decree  of  the  administration  of  their  property,  or  against  a  vacant  or 

*  This  article  subrogates  subdivision  6  of  ordinal  art.  981 ;  which  subdivision  was 
expressly  repealed  by  art.  338  of  Law  105  of  1890. 


1 88 

undivided  inheritance,  notice  of  the  respective  order  shall  be  served 
upon  their  respective  representatives,  and  all  proceedings  had  shall  be 
served  upon  and  conducted  with  such  persons  to  the  end  of  the  action. 

989).  ART.  1031.  If  the  property  produced  or  denounced  by  the 
execution  creditor  or  execution  debtor  should  be  in  the  possession  of  a 
third  person,  who  claims  it  as  his  own  at  the  time  it  is  about  to  be 
attached  it  shall  be  attached  in  his  possession  and  left  with  him,  pro- 
vided that  security  to  the  satisfaction  of  the  Judge  be  furnished  to  de- 
liver it  in  the  condition  in  which  it  may  be  at  the  time  the  attachment 
was  levied,  and  with  all  the  fruits  thereof,  if  he  should  state  that  they,  do 
not  belong  to  him.  The  same  shall  be  done  if  the  attachment  and  deposit 
proceedings  are  not  had  with  the  third  possessor  in  person,  and  the 
latter  makes  the  claim  referred  to,  at  any  stage  of  the  proceedings 
before  the  public  sale,  on  or  before  the  third  day  after  he  may  have 
been  personally  notified  of  the  attachment.  The  question  of  ownership 
shall  be  heard  and  decided  in  an  action  of  intervention  without  pre- 
judice to  the  attachment  of  other  property  of  the  execution  debtor,  on 
the  petition  or  by  denunciation  of  the  execution  creditor. 

This  question  shall  be  heard  and  decided  in  an  action  of  intervention 
without  prejudice  to  the  attachment,  on  the  petition  or  by  the  denunci- 
ation of  the  execution  creditor,  of  other  property  of  the  execution 
debtor.* 

990).  ART.  1032.  When  the  property  to  be  attached  in  the  case  of 
the  preceding  article,  in  its  first  part,  should  be  consumable,  the  bond 
shall  be  to  secure  the  return  of  a  like  amount  of  property  of  the  same  class 
and  to  the  same  amount  as  that  attached.* 

991).  ART.  1033.  When  debts  are  to  be  attached  which  are  not  as  yet 
due  or  other  similar  rights,  the  attachment  and  the  deposit  shall  be  con. 
fined  to  a  direction  to  the  respective  person  obligated,  to  deal  with  the 
depositary  appointed,  as  the  only  representative  of  the  execution  debtor, 
as  to  the  debtor  right  attached.  The  depositary  shall  be  given  notice  of 
this  direction,  and  the  titles  establishing  the  right,  shall  be  delivered  to 
him,  if  they  can  be  found. 

981,  subdivision  7. 


THIRTY-THIRD  AMENDMENT. 
(Of  Law  46  of  1876.) 

992).  ART.  1034.  When  property  not  in  the  possession  of  the  execu- 
tion debtor  should  be  denounced,  the  ownership  of  the  latter  therein 
must  be  summarily  proved  in  order  that  the  attachment  may  be  ordered. 

*  Expressly  repealed.     See  note  to  ordinal  992. 


189 

Paragraph  nine.  The  denunciation  of  the  suit  may  be  made  in  these 
proceedings  in  the  same  manner  as  in  ordinary  actions.  The  denunci- 
ation shall  be  made  within  twenty-four  hours  after  service  of  notice  of 
the  decree  of  execution.* 

993).  ART.  189  of  Law  105  of  1890.  If  at  the  time  of  the  deposit  of 
the  property  denounced  by  the  execution  creditor  or  confessed  by  the 
execution  debtor,  it  should  be  in  the  possession  of  a  third  person  who 
claims  it  as  his  own — which  claim  may  be  made  verbally — it  shall  be 
attached  in  his  possession  and  left  with  him  as  a  deposit.  When  this 
takes  place,  if  the  execution  creditor  should  insist  upon  continuing  the 
execution  upon  such  property,  he  shall  so  state  within  six  davs,  and  at 
the  same  time  he  shall  present  a  solidary  surety  having  the  qualifica- 
tions referred  to  in  article  103  of  this  Law,  in  order  that  he  may  answer 
for  the  damages  which  the  third  possessor  of  the  property  may  be 
obliged  to  suffer,  by  virtue  of  the  attachment  and  the  consequent  pro- 
ceedings, in  the  event  that  it  should  be  declared  that  such  property  be- 
longs to  said  possessor.  If  within  the  six  days  mentioned,  the  execution 
creditor  should  not  insist  upon  his  claim,  or  should  fail  to  furnish  the 
surety  within  a  term  of  six  days  more,  the  attachment  on  the  prop- 
erty shall  be  raised  and  the  deposit  shall  cease. f 

970  last  par.,  984,  994  to  1002. 

994).  ART.  190  of  Law  105  of  1890.  The  third  possessor  referred  to 
shall  enforce  his  rights,  in  accordance  with  the  laws,  within  thirty  days 
after  the  execution  creditor  shall  have  furnished  the  bond ;  and  in  the 
event  that  it  should  be  necessary  for  him  to  bring  a  suit  in  intervention, 
in  accordance  with  the  provisions  of  article  204,  he  shall  do  so  within  six 
days  after  the  decision  upon  the  incidental  issue  shall  become  final. 

Said  third  possessor  is  not  obligated  to  furnish  a  bond  for  the  costs 
in  the  suit  in  intervention  which  he  may  bring  4 

737,  742,  993,  995,  999,  1000,  1031. 

995).  ART.  191  of  Law  105  of  1890%  If  the  execution  creditor  should 
insist  upon  the  execution,  the  third  possessor  shall  upon  the  petition  of 
the  latter  or  of  the  execution  debtor,  be  required  to  furnish  a  surety 
having  the  qualifications  aforementioned,  within  six  days,  to  answer 
that  the  possessor  will  deliver  the  property  in  the  state  in  which  it  was 
at  the  time  attachment  was  levied,  if  it  should  be  decided  that  such 
property  does  not  belong  to  him. 


*  This  article  as  well  as  ordinal  arts.  989  and  990  have  been  expressly  repealed  by 
art.  338  of  Law  105  of  1890,  and  subrogated  by  the  following  of  Law  105:  ordinal 
arts.  993  to  1002. 
i    f  Art.  103  herein  referred  to  is  ordinal  article  737. 

J  Art.  204  herein  referred  to  is  ordinal  art.  1031. 


190 

If  the  property  should  be  consumable,  the  purpose  of  the  bond  shall 
be  to  secure  the  return  of  a  like  amount  of  property  of  the  same  kind 
and  to  the  same  amount  as  that  attached. 

If  the  possessor  should  not  furnish  the  surety,  the  property  shall  be 
turned  over  to  a  depositary  to  be  appointed  by  the  Judge. 

993- 

996).  ART.  192  of  Law  105  of  1890.  If  at  the  time  the  deposit  of  the 
property  is  made  it  should  be  in  the  possession  of  another  who  claims  to 
hold  it  as  an  employee,  overseer  (mayordomo}  or  manager  of  a  person 
other  than  the  execution  debtor,  or  in  the  name  of  said  other  person,  as 
lessee,  usufructuary,  borrower  for  use,  etc.,  the  attachment  ordered  shall 
subsist,  the  thing  shall  be  provisionally  deposited  with  the  person  in 
whose  possession  it  may  be,  and  the  summons  of  the  possessor  thereof 
shall  be  ordered  to  enter  an  appearance  for  the  enforcement  of  his  rights. 

The  same  method  shall  be  observed  when  the  property  denounced 
consists  of  realty  and  should  be  in  the  possession  of  the  debtor  himself, 
if  the  latter  should  produce  summary  and  sufficient  evidence  to  the 
effect  that  he  is  the  mere  holder  of  said  property. 

997).  ART.  193  of  Law  105  of  1890.  The  citation  referred  to  in  the 
preceding  article  shall  be  made  by  means  of  writs  of  citation,  drafted 
upon  ordinary  paper,  authorized  by  the  Judge  and  the  Secretary.  One 
writ  shall  be  delivered  to  the  person  in  whose  possession  the  thing  may 
be;  another  shall  be  sent  by  a  Police  Agent,  or  by  mail,  to  the  indi- 
vidual designated  by  such  person  as  the  possessor  of  the  thing,  and 
another  shall  be  addressed  to  any  known  member  of  the  family  of  said 
possessor.  Upon  the  expiration  of  six  days  next  after  the  issue  of  these 
writs,  of  which  fact  the  Secretary  shall  make  an  entry  upon  the  record 
of  the  case,  the  deposit  of  the  property  shall  be  made  in  the  care  of  the 
person  of  the  depositary  appointed  by  the  execution  debtor,  if  said 
third  possessor  should  not  have  entered  an  appearance  for  the  purpose 
of  enforcing  his  rights. 

998).  ART.  194  of  Law  105  of  1890.  If  the  said  possessor  should  enter 
an  appearance  at  any  time,  before  the  sale  and  claim  the  property 
attached  as  his  own,  the  provisions  of  articles  189  to  191  shall  be  ob- 
served.* 

996. 

999).  ART.  195 of  Law  105  of  1890.  The  real  possessorof  the  property 
attached  and  deposited,  who  may  not  have  been  summoned  by  reason  of 
his  existence  being  unknown,  may  also  appear  at  any  stage  of  the  execu- 
tory action,  before  the  public  sale,  in  order  to  enforce  the  rights  referred 


*  Arts.  189  to  191  herein  referred  to,  are  ordinal  arts.  993  to  995. 


to  in  the  preceding  articles ;  but  in  order  to  be  heard,  he  must  present 
summary  and  sufficient  evidence  to  establish  that  he  was  the  regular 
possessor  of  such  property  the  day  the  attachment  thereof  was  ordered. 

1000).  ART.  196  of  Law  105  of  1890.  On  the  petition  of  the  regular 
possessor  of  realty  attached  in  an  execution,  the  Judge  shall  order  the 
attachment  to  be  raised,  as  well  as  the  cancellation  of  the  respective 
proceeding  and  the  delivery  of  the  realty  to  the  claimant,  if  it  should 
not  as  yet  have  been  sold,  if  the  possessor  present  the  registered  title 
thereto  and  the  certificate  mentioned  in  art.  III. 

In  such  case,  it  must  appear  that  the  date  of  the  actual  registration  is 
prior  to  that  of  the  denunciation  of  the  realty  by  the  execution  creditor 
or  to  that  of  the  indication  thereof  by  the  execution  debtor,  without 
the  Judge  shall  not  order  the  attachment  to  be  raised.* 

1001,  1031. 

1001).  ART.  197  of  Law  105  of  1890.  In  the  case  of  the  preceding 
article,  the  execution  creditor  as  well  as  the  execution  debtor,  may  bring  a 
suit  against  the  third  possessor,  in  the  executory  action,  in  order  that  a 
judgment  may  be  rendered  declaring  that  said  third  possessor  is  not  the 
owner  of  the  immovable  which  he  may  have  claimed.  The  said  suit 
shall  be  heard  and  decided  in  accordance  with  the  procedure  in  ordinary 
actions,  and  if  a  judgment  be  rendered  in  the  first  instance  against  the 
possessor,  the  immovable  shall  be  attached;  but  it  shall  be  left  on 
deposit  with  the  said  possessor  if  the  latter  should  so  request,  after 
furnishing  the  bond  referred  to  in  article  191. 

If  the  possessor  should  not  make  the  claim  referred  to  within  six 
days  after  receiving  notice  of  the  judgment,  or  should  fail  to  furnish  the 
bond  within  the  term  which  the  Judge  may  fix,  the  immovable  shall 
be  deposited  with  a  depositary  appointed  by  the  Judge. 

The  judgment  in  the  last  instance  having  become  final,  if  against  the 
possessor,  the  immovable  shall  be  sold  at  public  auction,  if  proper,  after 
the  attachment  and  deposit  thereof,  if  by  reason  of  the  judgment  in 
the  first  instance  having  been  favorable  to  the  possessor,  such  immov- 
able should  not  have  been  attached  or  deposited-! 

1002. 

1002).  ART.  198  of  Law  105  of  1890.  If  the  judgment  in  the  first 
instance  should  be  against  the  possessor  and  in  favor  of  a  person  other 
than  the  execution  debtor,  who  may  have  become  a  party  to  the  action, 
the  attachment  and  deposit  mentioned  shall  not  take  place,  nor  shall  the 
estate  be  sold,  if  the  judgment  in  the  last  instance  should  recognize  a  right 

*  Art.  in  referred  to  herein,  is  ordinal  art.  745. 
t  Art.  191  referred  to  herein,  is  ordinal  art.  995. 


192 

in  the  said  thing  in  said  person  or  another  person,  not  the  execution 
debtor. 

1003).  ART.  1035.  One  depositary  only  shall  be  appointed  for  mov- 
able property  situated  in  one  place ;  but  if  such  property  should  be  in 
different  places,  or  if  real  estate  is  to  be  attached,  a  depositary  may  be 
appointed  for  the  movable  property  in  each  place,  and  one  for  each  of 
the  estates. 

987- 

1004).  ART.  1036.  The  appointment  of  a  depositary  shall  be  made 
by  the  execution  debtor,  excepting  when  he  shall  fail  to  appoint  him  at 
the  time  of  notice  of  the  order  of  execution,  or  should  appoint  a  person 
who  does  not  wish  to  or  cannot  accept,  or  should  not  reside  in  the  place 
of  the  action,  in  which  cases  said  appointment  shall  be  made  by  theexe- 
cut'on  Judge. 

987- 

1005).  ART.  1037.  When  in  the  opinion  of  the  Judge  the  responsi- 
bility or  means  (abono)  of  the  depositary  appointed  by  the  execution 
debtor  should  not  be  well  known,  he  shall,  on  the  petition  of  the 
execution  creditor,  require  him  to  furnish  a  bond  to  the  satisfaction  of 
the  said  Judge,  to  faithfully  perform  the  duties  of  a  depositary.  If  said 
bond  being  demanded  it  should  not  be  furnished  within  the  time  which 
the  Judge  may  fix,  the  depositary  shall  be  understood  as  removed  by 
such  fact. 

1006,  1007. 

1006).  ART.  1038.  The  depositary  shall  also  be  removed,  even  though 
he  shall  have  furnished  the  bond  referred  to  in  the  preceding  article, 
and  even  though  he  should  have  been  appointed  by  the  Judge,  if  the 
execution  creditor  and  the  execution  debtor  should  so  request,  or  one  of 
them  only,  provided  that  in  the  latter  case  the  person  making  the  re- 
quest should  submit  evidence,  even  though  of  a  summary  character, 
showing  that  the  depositary  does  not  properly  administer  the  deposit. 

1007).  ART.  1039.  The  execution  debtor  shall  appoint  the  depositary 
who  is  to  take  the  place  of  the  one  removed,  unless  he  shall  fail  to  make 
such  designation  at  the  time  of  receiving  notice  of  the  order  of  the  Judge 
directing  him  so  to  do,  or  unless  he  shall  appoint  an  individual  \vh<> 
should  not  wish  to  or  be  unable  to  accept,  or  should  not  reside-  in  tin- 
place  where  the  action  is  being  prosecuted,  as  in  such  case  he  shall  In- 
appointed  by  the  Judge. 

1008).  ART.  1040.  The  Judge  of  the  cause  may  authorize  the  deposi- 
tary to  dispose  of  the  consumable  things  deposited,  under  the  obligation 


193 

of  returning  a  similar  amount  of  the  same  quality  as  those  received,  as  is 
the  case  with  the  deposit  of  money,  according  to  the  substantive  laws. 

1009).  ART.  1041.  The  warrantor  answers  that  the  property  attached 
belongs  to  the  debtor,  and  that  with  the  proceeds  from  the  sale  thereof 
deducting  any  charges  thereagainst,  the  debt  and  the  costs  shall  be  paid, 
obligating  himself  in  a  contrary  event  to  pay  what  may  be  lacking. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

1010).  ART.  1 86  of  Law  105  of  1890.  The  warrantor  shall  answer 
that  the  property  offered  or  denounced  belongs  to  the  debtor,  and  that, 
with  the  proceeds  of  the  sale  thereof,  after  deducting  any  charges  there- 
against, the  debt  and  the  costs  will  be  paid. 

981,  subdivision  4. 

ion).  ART.  1042.  The  order  in  which  the  attachment  of  the  prop- 
erty produced  by  the  debtor,  or  denounced  by  the  creditor,  is  to  be 
made  is  the  following : 

1 .  Cash  (diner o  sonante) . 

1032. 

2.  Movable  property. 

3.  Real  property. 

4.  One-half  the  salary,  or  of  the  income  or  pension  which  the  execu- 
tion debtor  may  enjoy  from  his  office,  trade  or  profession,  or  any  other 
source. 

i°33- 

5.  The  credits  which  the  debtor  may  have  in  his  favor,  preferring 
those  whose  collection  is  the  easiest,  in  the  opinion  of  the  creditor ;  and 

6.  Any  other  thing  which  may  be  denounced  or  shown  to  be  the 
property  of  the  debtor. 

1012,  1013,  1035. 

1012).  ART.  1043.  The  order  established  in  the  preceding  article  may 
be  changed  at  the  will  of  the  creditor  whenever  there  is  no  cash  money 
with  which  to  pay  the  sum  sued  for ;  and  it  is  also  optional  with  said 
creditor  that  less  than  one-half  the  salary,  or  of  the  income  or  pension 
enjoyed  by  the  execution  debtor  be  attached. 

1013).  ART.  1044.  If  there  should  be  property  specially  mortgaged  for 
the  payment  of  the  debt,  it  shall  be  attached  before  any  other  property, 
unless  there  should  also  be  cash  on  hand,  which  shall  always  be  applied 
before  anything  else. 


194 

But  as  soon  as  it  shall  appear  that  the  mortgage  is  insufficient,  the 
execution  may  be  extended  to  other  property. 

1014).  ART.  1045.  When  the  execution  is  levied  upon  a  thing  speci- 
ally liable  for  the  payment  of  the  debt  by  reason  of  an  express  or  implied 
mortgage,  the  notices  shall  be  served  upon  the  debtor  obligated,  if  he 
can  be  found,  and  otherwise,  upon  counsel  who  shall  be  appointed  to 
fulfill  the  formalities  in  the  proceedings,  and  defend  the  mortgage  in 
so  far  as  necessary. 

1015,  1021,  1016,  212,  213,  214,  976. 

1015).  ART.  1046.  If  the  thing  attached  as  specially  subject  to  the 
payment,  should  consist  of  a  vessel,  the  attachment  and  public  sale  of 
which  may  have  been  requested  for  the  payment  of  the  crew,  sums 
secured  by  reason  of  a  bottomry  loan,  or  any  other  debt  which  legally 
affects  her,  the  notices  for  all  the  purposes  of  the  action  shall  be  served 
upon  the  captain,  the  owner  or  the  consignee,  if  they  should  desire  to 
appear,  and  otherwise,  upon  a  counsel,  as  in  the  case  of  the  preceding 
article. 

1016).  ART.  1047.  A  counsel  (defensor}  properly  discharging  the 
duties  referred  to  in  the  two  preceding  articles,  is  entitled  to  compen- 
sation for  his  services,  which  compensation  shall  be  fixed  at  a  reasonable 
sum  by  the  judge,  and  it  shall  be  deducted  as  costs,  from  the  proceeds 
of  the  sale  of  the  thing  levied  on. 

The  following  article  is  additional : 

1017).  ART.  200  of  Law  105  of  1890.  When  real  property  shall  have 
been  attached  in  an  executory  action,  the  public  shall  be  given  notice  of 
the  attachment  by  means  of  an  edict  which  shall  be  posted  in  the  office 
of  the  Secretary  of  the  Court,  in  the  same  place  which  is  set  aside  for  the 
posting  of  the  edicts  referred  to  in  article  223  of  this  law.  Said  edict 
shall  indicate  the  following :  the  executory  action  in  which  the  attach- 
ment was  ordered,  the  names  of  the  parties,  the  location  of  the  real 
property  attached,  its  bounds  and  its  name,  if  known.  Said  edict  shall 
also  cite  those  believing  themselves  entitled  to  a  right  in  the  real  prop- 
erty, in  order  that  they  may  appear  to  enforce  it  in  an  action  in  inter- 
vention. The  edict  shall  remain  posted  for  thirty  days,  and  a  copy 
thereof  shall  be  published  three  times  in  the  official  periodical  of  the 
respective  Department,  from  the  date  of  the  posting  of  the  edict. 

The  course  of  the  executory  action  shall  not  be  suspended  during  the 
thirty  days  referred  to  in  the  preceding  article,  but  the  sale  shall  not 
take  place  before  the  expiration  of  said  term . 

1018).  ART.  1048.  The  following  property  of  the  execution  debtor 
cannot  be  levied  on : 

i .  One-half  the  salary,  income  or  pension  which  he  may  receive  from 
his  office,  trade,  profession,  or  from  any  other  source. 


195 

2.  His  bed,  bedstead  and  bedding  (lecho),  those  of  his  wife,  those  of 
his  children  living  with  him  and  at  his  cost,  and  the  clothing  used  by  all 
of  these  persons. 

3 .  The  books  of  his  profession  to  the  value  of  two  hundred  pesos,  and 
at  the  selection  of  the  said  debtor. 

4.  The  machinery  and  instruments  which  he  uses  for  instruction  in 
any  science  or  art,  up  to  said  value,  and  subject  to  the  same  selection. 

5.  His  military  uniforms  and  equipment,  according  to  his  arm  and 
rank. 

6.  His  tools  as  an  artisan  or  farmer,  if  the  debtor  be  either. 

7.  Articles  of  food  and  fuel  in  the  possession  of  the  debtor  to  the 
amount  necessary  for  the  consumption  of  the  family  for  one  month,  and 

8.  The  personal  rights  of  use  and  habitation  possessed  by  the  debtor. 

1023,1092.     1677  of  the  Civil  Code. 

1019).  ART.  1049.  The  donation  or  bequest  of  a  thing  to  the  debtor 
under  the  condition  of  its  not  being  subject  to  attachment,  shall  not  be 
an  obstacle  to  its  attachment  in  an  executory  action.  • 

1020).  ART.  1050.  Privates  in  the  army,  and  persons  living  from  the 
product  of  their  material  industry  or  labor,  can  have  their  wages 
attached  only  in  so  far  as  they  exceed  twenty-five  cents. 

1021).  ART:  1051.  When  the  amount  sued  for  should  be  due  under  a 
rent  charge  (censo),  the  estate  subject  thereto  only  shall  be  attached; 
unless  the  personal  action  should  be  brought  which  is  granted  the  cen- 
sualista  by  the  substantive  laws. 

976,  1014. 

1022).  ART.  1052.  If  the  thing  attached  should  not  consist  of  money, 
nor  an  annual  income  after  the  attachment  thereof  it  shall  be  appraised 
by  the  appraisers  appointed. 

If  it  should  consist  of  credit  in  favor  of  the  execution  debtor,  they 
shall  be  estimated  in  accordance  with  their  degree  of  solvency,  in  the 
opinion  of  the  appraisers. 

The  securities  of  the  public  debt  shall  be  appraised  according  to  the 
price  at  which  they  are  quoted  on  the  exchange. 

1098,  1099.' 

The  following  article  is  supplemental : 

1023).  ART.  20 1  of  Law  105  of  1890.  Upon  the  attachment  of  an 
estate  in  an  executory  action,  it  cannot  be  attached  in  another  as  long 
as  the  original  attachment  subsists,  and  if  so  attached,  the  last  attach- 
ment is  null  ipso  jure. 

1024).  ART.  1053.  Upon  the  proceedings  prescribed  in  the  preceding 
articles  having  been  had  by  the  Judges  of  the  cause,  or  returned  by  the 


196 

commissioner,  in  a  proper  case,  and  attached  to  the  record,  the  Judge 
shall  at  once  issue  an  order  directing  the  citation  of  the  execution  debtor 
for  judgment  ordering  the  announcement  and  sale  of  the  property 
attached  (para  sentencia  de  pregon  y  remate) . 

Within  seventy-two  hours  after  notice  of  this  order,  the  execution 
debtor  may  plead  the  following  exceptions : 

1 .  Falsity  of  the  executory  instrument. 

2.  Nullity  of  the  same. 

3.  Fictitious  contract. 

4.  Fear  of  force  sufficient  to  annul  the  contract. 

5.  Fraud  which  gave  rise  to  the  contract. 

6.  Novation  of  the  contract. 

7.  Payment. 

8.  Set  off  by  another  liquidated  debt,  already  due. 

9.  Transaction. 

10.  Promise  or  agreement  not  to  demand. 

11.  Res  judicata. 

12.  Prescription-. 

1 3 .  Pending  bankruptcy  proceedings . 

14.  Incompetency  of  jurisdiction. 

15.  Illegitimacy  of  representation  on  the  part  of  the  plaintiff,  and 

1 6.  Error  in  the  account. 

285,  1027,  824,  827,  834,  1026,  1028,  1085,  1128,  1129.  Art.  26 
of  Law  169  of  1896  is  amendatory.  Art.  69  of  the  last  named 
law  declares  this  article  to  be  expressly  amended. 

1025).  ART.  1054.  When  a  judgment  is  the  executory  instrument, 
an  exception  pleading  nullity  is  not  admissible,  if  such  nullity  should 
not  have  been  declared  in  the  proceedings  in  which  said  judgment  shall 
have  been  rendered. 

Expressly  repealed  by  art  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

1026).  ART.  202  of  Law  105  of  1890.  When  an  execution  shall  be 
levied  by  virtue  of  any  of  the  instruments  mentioned  in  the  first  three 
numbers  of  article  179  of  this  Law,  no  exceptions  shall  be  admissible 
but  those  of  nullity  and  those  arising  from  facts  which  shall  have  occurred 
after  the  rendition  of  the  judgment  or  of  the  order  whose  execution  is  in 
question.  In  other  cases,  the  execution  debtor  may  oppose,  in  addition 
to  the  exceptions  referred  to  in  article  1053  of  the  Judicial  Code,  as  a 
peremptory  exception,  any  act  by  virtue  of  which  the  laws  ignore  the  exist- 
ence of  the  obligation  or  declare  it  to  be  extinguished  if  it  ever  existed.* 

285. 

*  Arts.  179  and  1053,  referred  to  herein,  are  ordinal  arts.  960  and  1024  respec- 
tively. 


197 

1 027).  ART.  1055.  If  the  execution  debtor  should  avail  himself  in 
due  time  of  the  right  granted  him  by  article  1053,  the  Judge  shall  hear 
evidence  upon  the  incidental  issue  of  the  exceptions  from  both  sides 
for  fifteen  days,  which  cannot  be  extended,  upon  the  expiration  of  which 
the  Judge  shall  order  that  the  papers  be  referred  for  three  days  each  to 
the  execution  debtor  and  the  execution  creditor;  upon  the  expiration 
of  the  same  and  after  citation,  he  shall  render  judgment  within  eight 
days  after  the  citation,  declaring  whether  the  exceptions  interposed  are 
or  are  not  sustained,  and  ordering  the  execution  to  cease  and  the  property 
attached  to  be  released,  in  the  first  case,  or  ordering  the  sale  thereof  in 
the  second.* 

1028,  333,  334,  1032  to  1035,  1094,  1098,  noi. 

1028).  ART.  1056.  The  Judge  must  likewise  render  judgment,  even 
without  the  necessity  of  a  new  citation,  directing  that  the  execution  and 
sale  of  the  property  be  proceeded  with,  if  within  seventy-two  hours 
after  the  citation  for  judgment  of  sale,  the  execution  debtor  should  not 
have  opposed  any  exception  of  those  which  the  law  permits. 

1024  first  par.,  1094. 

The  three  following  articles  are  supplemental : 

1029).  ART.  203  of  Law  105  of  1890.  At  any  stage  of  the  proceed- 
ings the  payment  or  performance  of  the  obligation  may  be  pleaded,  upon 
the  production  of  the  document  establishing  such  fact.  If  payment 
should  be  declared  not  to  be  established,  nor  the  performance  of  the  obli- 
gation, the  costs  shall  be  taxed  against  the  execution  debtor,  who  can- 
not again  raise  the  same  issue. 

Supplemented  by  the  following : 

1030).  ART.  36  of  Law  100  of  1892.  In  issues  upon  the  payment  in 
an  executory  action v  referred  to  in  article  203  of  Law  105  of  1890,  the 
evidence  of  witnesses  shall  not  be  admissible;  both  in  raising  and 
deciding  them,  written  documents  only  or  preconstituted  evidence  can 
be  considered. f 

1031).  ART.  204  of  Law  105  of  1890.  Any  person  other  than  the 
execution  debtor  may  claim  as  his  own,  summarily,  the  property  belong- 
ing to  him  which  may  have  been  attached  in  an  execution.  Such 
petition  shall  be  heard  and  decided  as  an  incidental  issue,  and  shall 
be  referred  to  the  execution  creditor  as  well  as  the  execution  debtor. 
If  the  petitioner  should  fully  establish  his  right,  the  property  attached 
shall  be  released;  should  he  fail  to  establish  it,  it  shall  continue  subject 
to  attachment,  but  may  be  claimed  in  an  action  of  intervention.  The 

*  Art.  1053  referred  to  herein,  is  ordinal  art.  1024. 
f  Art.  203  cited,  is  ordinal  article  1029. 


198 

property  referred  to  may  again  be  denounced  in  the  same  execution,  if 
subsequently  to  the  decision  upon  the  incidental  issue  it  should  have 
been  acquired  by  the  execution  debtor,  and  it  shall  be  attached  if  the 
denouncing  party  shall  present  the  evidence  required  by  the  law  to 
establish  the  acquisition  of  the  ownership  of  the  thing  in  question.  The 
preceding  provisions  are  without  prejudice  to  the  provisions  of  article 
196  of  this  Law.* 

1000. 

1032).  ART.  1057.  If  the  attachment  should  have  been  levied  upon 
cash,  upon  the  judgment  of  sale  against  the  debtor,  the  Judge  shall  order 
that  the  sum  due  the  creditor  be  delivered  to  him. 

1033).  ART.  1058.  If  a  salary,  income  or  pension  should  have  been 
attached,  the  Judge  shall  order  in  the  judgment  of  sale,  that  the  proper 
writ  be  issued  directing  the  delivery  to  the  creditor  of  the  amount  re- 
tained, and  that  thereafter  there  be  delivered  to  him  what  is  to  be  with- 
held from  the  debtor,  until  the  sum  which  he  may  have  been  adjudged 
to  pay  shall  have  been  covered. 

1098,  noi. 

1034).  ART.  1059.  If  tne  thing  attached  should  consist  of  something 
specific,  by  reason  of  such  thing  being  that  which  is  to  be  delivered  to 
the  creditor,  an  order  shall  be  made  in  the  judgment  of  sale  directing  the 
delivery  of  said  thing,  and  that  the  property  destined  to  the  payment  of 
the  costs  should  be  announced  and  sold  at  auction. 

1014. 

1035).  ART.  1060.  If  the  attachment  should  have  been  levied  upon 
other  property,  the  public  shall  be  informed  of  the  date  of  the  sale  there- 
of, which  date  cannot  be  set  for  a  day  less  than  eight  days  after  the  date 
of  the  announcement,  if  movables  or  incorporeal  things  should  be  in- 
volved; nor  eighteen  days,  if  real  property  is  in  question. 

If  the  movable  property  attached  should  consist  of  perishable 
articles,  the  Judge  may  in  his  discretion  reduce  the  time  which  is  to 
intervene  between  the  announcements  and  the  sale. 

1032,  1033,  1034,  1094  to  1097. 

1036).  ART.  1061.  The  announcements  shall  be  made  by  means  of 
posters,  which  shall  state  the  day  of  the  sale  and  the  property  to  be  sold, 
with  a  notice  of  the  appraised  value  thereof. 

The  announcements  shall  also  be  made  through  the  press,  if  there 
should  be  any  in  the  place  where  the  sale  is  to  take  place. 

1038,  1040,  1041,  1045,  1095. 
*  Art.  196  referred  to  herein,  is  ordinal  art.  1000. 


199 

The  following  article  is  additional : 

1037).  ART.  211  of  Law  105  of  1890.  Upon  the  same  day  that  the 
sale  is  to  take  place  it  shall  be  made  known  by  means  of  the  preparatory 
announcements  to  be  made  by  the  criers  (pregones)  which  shall  be  made 
two  hours  before  the  sale  is  to  be  held,  at  an  interval  of  one  hour  between 
each  such  announcement.  Upon  the  arrival  of  the  hour  for  the  sale, 
such  time  shall  be  announced,  as  well  as  the  bid  offered,  the  subsequent 
raises,  by  means  of  announcements  by  the  crier,  as  well  as  the  adjudica- 
tion in  the  sale. 

1038).  ART.  1062.  The  Secretary  is  specially  liable  for  the  execution 
of  the  provisions  of  the  two  preceding  articles,  and  for  the  posters  remain- 
ing affixed  and  legible  for  the  time  set.  The  proper  entry  shall  be  made 
upon  the  record  of  such  observance,  stating  in  what  places  and  in  what 
periodicals  the  notices  were  posted  and  inserted.* 

1039. 

1039).  ART.  1063.  If  the  notices  should  be  removed,  torn,  erased  or 
their  reading  made  impossible  in  any  other  manner,  the  Judge  of  the 
cause  shall  punish  by  arrest  or  fines  such  contempt  of  his  authority,  as 
such  acts  are  to  be  so  considered. 

1040).  ART.  1064.  If  all  or  part  of  the  property  to  be  sold  should  be 
situated  in  a  district  other  than  that  in  which  the  sale  is  to  be  held,  the 
Judge  of  the  cause  shall  write  a  communication  to  one  of  the  Judges  of 
the  District  in  which  the  property  may  be  situated  in  order  that  he  may 
also  post  edicts  for  six  days,  in  the  terms  indicated.  The  sale  cannot  be 
held  without  a  record  of  this  having  been  done. 

1095. 

1041).  ART.  1065.  The  Judge  of  the  cause  may  also,  on  the  request 
of  any  of  the  parties,  issue  a  writ  empowering  one  of  the  Judges  of  the 
district  in  which  some  of  the  property  may  be  situated,  to  proceed  with 
the  sale  thereof  at  public  auction,  for  which  purpose  he  must  transmit 
therewith  a  copy  of  the  appraisal  of  such  property,  fixing  the  days  for 
the  announcements  by  crier  and  for  the  sale. 

In  such  case,  the  announcements  must  be  posted  not  only  in  the  place 
where  the  proceedings  are  being  had  but  also  in  the  seat  of  the  District 
where  the  property  is  to  be  sold,  with  the  requisites  and  for  the  term 
prescribed  in  article  1060  for  each  kind  of  property. f 

1035  to  1038,  1095,  1096. 

*  The  two  preceding  articles  referred  to  herein  are  ordinal  articles  1035  and  1036, 
as  1037  has  been  incorporated. 

f  Art.  1060  cited  herein  is  ordinal  art.  1035. 


2OO 

1042).  ART.  1066.  The  sales  shall  be  held  before  the  Judge  of  the 
cause,  between  ten  A.  M.  and  four  P.M.  The  time  at  which  bids  will  be 
accepted,  shall  be  stated  in  the  announcements. 

In  no  case  can  the  Judge  or  his  Secretary  purchase  the  property  placed 
on  sale. 

The  two  following  articles  are  additional,  and  the  second  one  is,  in 
addition,  amendatory. 

1043).  ART.  210  of  Law  105  of  1890.  Every  sale  shall  be  held  within 
the  hour  that,  in  accordance  with  the  provisions  of  art.  1066  of  the 
Judicial  Code,  may  have  been  fixed  as  the  last  admissible  for  the  accept- 
ance of  bids;  the  last  instant  thereof  should  not  be  awaited.  During 
said  hour  raises  and  counter  raises  shall  be  admitted,  and  the  Judge 
shall  award  the  sale  at  the  moment  he  may  deem  proper,  within  the  hour, 
first  announcing  that  he  is  going  to  adjudicate  it.* 

Amended  by  the  following: 

1044).  ART.  16  of  Law  100  of  1892.  When  a  sale  is  to  be  held,  only 
the  hour  when  the  bidding  is  to  commence  shall  be  fixed;  after  such 
bidding  shall  have  commenced,  the  Judge  cannot  close  the  sale  until 
three  hours  shall  have  passed. 

1045).  ART.  1067.  The  real  property  shall  be  designated  by  its  situa- 
tion, boundaries  and  other  circumstances  permitting  of  its  precise  location 
being  known.  The  bidders  shall  be  furnished  both  with  regard  to  the 
real  property  and  the  movable  property,  all  the  information  they  may 
desire,  which  it  may  be  possible  to  furnish  them. 

1036,  1054. 

1046).  ART.  1068.  In  order  to  obtain  greater  returns  from  the  sales, 
the  realty  may  be  divided  into  sections,  if  such  division  should  be  prac- 
ticable; and  the  movable  property  may  be  grouped  into  lots  and  classi- 
fied in  the  most  convenient  manner.  Any  indication  made  in  this  respect 
by  the  parties,  shall  be  considered  by  the  Judge,  the  indications  of  tin- 
execution  debtor  being  given  the  preference. 

1047).  ART.  1069.  At  every  auction  the  sale  may  be  made  for  two- 
thirds  the  appraised  value,  and  the  creditor  is  a  competent  bidder. 

1057,  1062.     Law  169  of  1896,  article  22,  is  important. 

The  three  articles  which  follow,  are  additional : 

1048).  ART.  207  of  Law  105  of  1890.  At  every  public  sale  held  as  a 
result  of  judicial  proceedings,  the  bidder  must,  in  order  that  his  bid  may 
be  admissible,  consign  (deposit)  five  per  cent  of  the  appraised  value  of 
the  estate. 

*  Art.  1066  cited  herein  is  ordinal  art.  1042. 


2OI 

The  bidder  failing  to  comply  with  the  obligations  imposed  upon  him 
by  the  laws,  shall  lose  the  five  per  cent  consigned.  One-half  of  this  five 
per  cent  shall  belong  to  the  execution  creditor,  to  whom  it  shall  be  de- 
livered at  once.  The  other  half  shall  accrue  to  the  property  of  the  exe- 
cution debtor  destined  to  the  payment,  and  shall  also  be  delivered  to 
the  execution  creditor,  to  be  imputed  to  the  interest  due  and  after  the 
respective  liquidation  which  the  Judge  of  the  cause  shall  make.  If  there 
should  be  no  interest,  or  if  there  should  be  any  sum  left  from  this  half, 
after  payment  of  the  interest  due,  said  half  of  the  surplus  shall  be  im- 
puted to  the  principal  of  the  obligation  for  which  execution  was  levied, 
and  if  after  this  shall  have  been  done,  there  should  still  remain  a  surplus, 
it  shall  be  turned  over  to  the  execution  debtor. 

1057-      ' 

1049).  ART.  208  of  Law  105  of  1890.  If  the  bidder  should  not  be 
awarded  the  property,  he  shall  be  relieved  of  the  obligations  which  he 
contracted  in  order  to  be  able  to  bid,  and  therefore,  the  five  per  cent 
which  he  had  consigned,  shall  be  returned  to  him. 

1050).  ART.  209  of  Law  105  of  1890.  If  the  property  should  be 
awarded  the  bidder,  and  he  should  fulfil  the  conditions  thereof  in  a 
legal  form,  the  five  per  cent  consigned  shall  be  imputed  as  a  part  of  the 
payment. 

1051).  ART.  1070.  Every  sale  must  be  made  for  cash  for  the  payment 
of  the  costs.  It  may  be  made  on  time  for  the  payment  of  the  debt,  if 
the  creditor  should  agree,  relieving  the  debtor  of  the  liability ;  and  the 
sale  may  also  be  made  on  time  for  the  amount  of  the  surplus  sum  re- 
maining in  favor  of  the  debtor,  if  the  latter  should  agree. 

1076. 

1052).  ART.  1071.  The  sale  of  the  property  having  taken  place,  the 
Judge  shall  cause  the  Secretary  to  make  a  record  expressing  the  estates 
or  things  sold  in  detail,  the  name  of  the  successful  bidder,  the  amount 
for  which  such  estate  or  thing  may  have  been  sold,  the  cause  for  the 
sale  and  the  terms  which  may  have  been  stipulated.  This  record  shall 
be  signed  by  the  Judge,  the  Secretary  and  the  successful  bidder. 

The  following  article  is  supplemental  : 

1053) .  ART.  212  of  Law  105  of  1 890.  In  executory  actions  the  Judges 
must  order,  in  the  approval  of  the  sale,  that  the  record  of  attachment  of 
the  estate  which  may  have  been  sold,  be  cancelled ;  and  they  shall  trans- 
mit the  order  of  cancellation  to  the  respective  Registrar  in  the  same 
terms  as  that  directing  the  registration  of  the  attachment,  with  the  only 
changes  required  by  the  nature  of  the  proceeding. 

1054).  ART.  1072.  The  copy  of  the  record  of  sale  of  one  or  more  estates 


2O2 

or  things  purchased  at  public  sale,  is  a  sufficient  title  of  ownership  in 
favor  of  the  purchaser,  who,  in  addition,  has  a  right  of  action  to  force 
the  execution  debtor  to  transfer  to  him  the  deeds  or  documents,  if  he 
should  have  them,  and  by  virtue  of  which  he  possessed  the  property 
sold.  The  copy  shall  be  signed  by  the  Judge  and  by  the  Secretary. 

The  copy  referred  to  in  this  article  is  equivalent  to  a  public  instrument 
and,  consequently,  the  execution  of  a  public  instrument  is  not  necessary 
for  the  transfer  of  the  ownership.  If  the  sale  shall  have  been  of  real 
property,  it  shall  be  sufficient  that  such  title  be  registered  in  the  proper 
office,  if  the  law  requires  this  formality  in  public  [instruments  trans- 
ferring property  of  this  character. 

The  following  article  is  supplemental : 

1055).  ART.  213  of  Law  105  of  1890.  The  owner  of  property  which 
may  have  been  sold  under  an  execution  has  the  right  to  institute  an 
action  for  revendication,  provided  that  the  person  bringing  such  action 
is  not  the  person  against  which  the  executory  action  may  have  been 
brought  or  who  derives  his  rights  from  the  latter,  in  accordance  with 
article  846  of  the  Judicial  Code;  nor  one  who  shall  have  interposed  in 
said  executory  action  a  suit  in  intervention,  claiming  ownership  (terceria 
excluyente)  if  he  shall  have  been  cast  therein,  unless  the  title  he  pleads 
should  be  different  from  that  discussed  in  the  suit  in  intervention,  in 
accordance  with  art.  271  of  the  Code. 

If  in  the  judgment  rendered  in  the  suit  for  revendication,  the  right  of 
the  plaintiff  in  such  property  is  recognized,  it  shall  be  delivered  to  him 
whether  or  not  the  price  of  the  sale  shall  have  been  returned^.* 

710,  752,  1130. 

1056).  ART.  1073.  The  purchaser  of  property  at  a  public  auction 
held  as  a  result  of  judicial  proceedings,  who  shall  not  have  stipulated  the 
payment  in  installments,  must  pay  the  value  of  the  property  which  may 
have  been  adjudicated  to  him,  in  cash- within  twenty-four  hours  there- 
after. 

The  payment  must  be  made  before  the  Judge  of  the  cause,  the  proper 
act  thereof  being  made,  and  until  this  shall  be  done  what  he  may  have 
purchased  cannot  be  delivered  to  him,  nor  can  the  title  of  ownership 
referred  to  in  the  preceding  article  be  issued  to  him,  unless  a  document 
be  presented  establishing  that  the  creditor  and  the  debtor  have  agreed 
as  to  the  amount  due  each  from  the  proceeds  of  the  sale ;  but  the  costs 
must  always  be  paid  in  cash  down.f 

1057,  1076. 

*  Arts.  486  and  271  herein  referred  to,  are  ordinal  arts.  710  and  23  respectively, 
f  The  preceding  article  referred  to  herein  is  ordinal  art.  1054. 


203 

The  following  article  is  amendatory  and  supplementary. 

1057).  ART.  206  of  Law  105  of  1890.  When  the  execution  creditor 
or  any  of  the  opposing  parties  should  bid  at  the  sale  something  on  the 
account  of  their  credit,  which  can  be  done  to  the  extent  of  the  latter 
only,  he  must  execute  to  the  satisfaction  of  the  Judge,  a  bond  of  a  creditor 
having  a  better  right  (acreedor  de  mejor  derecho) .  This  takes  place  with 
respect  to  the  execution  creditor,  when  there  are  one  or  more  other 
opposing  parties  who  may  be  prejudiced  by  the  payment.  Such  bond 
consists  in  the  surety  binding  himself,  jointly  with  the  principal,  to  pay 
the  creditor  having  a  better  right,  according  to  what  may  result  from 
the  judgment.  In  the  case  of  this  article,  the  creditor  who  shall  have 
caused  the  sale,  shall  pay  the  debtor,  from  the  date  he  receives  the  thing 
sold,  the  same  interest  which  the  latter  should  pay  him. 

The  provisions  of  this  article  apply  to  bankruptcy  proceedings. 

1047,  1048,  1051,  1235. 

1058).  ART.  1074.  When  an  estate  shall  be  sold  for  the  payment  of 
the  demandable  part  of  a  debt  payable  in  installments,  for  the  security 
of  which  such  estate  may  have  been  mortgaged,  the  debtor  cannot  de- 
mand the  excess  of  the  price  of  the  sale,  after  the  deduction  of  the  de- 
mandable part  of  the  debt,  without  assuring  to  the  satisfaction  of  the 
creditor,  the  sum  which  would  still  be  due,  which  shall  be  deposited  in 
the  meantime. 

1059).  ART.  1075.  If  the  purchaser  should  fail  to  comply  with  his 
obligations,  the  Judge  shall  direct  that  the  property  sold  be  again 
offered  at  public  sale,  and  be  sold  to  the  highest  bidder,  after  advertise- 
ments thereof  for  eight  consecutive  days'.  But  the  next  previous  suc- 
cessful bidder  shall  be  responsible  in  an  executory  manner  for  the  dif- 
ference between  the  sales,  and  cannot  be  a  bidder  in  a  subsequent  sale  or 
salts. 

A  certificate  issued  by  the  Judge,  authorized  by  his  Secretary,  stating 
the  acts  which  constitute  said  bidder  responsible  for  the  difference  be- 
tween the  sales,  shall  serve  as  an  executory  demand  against  the  culpable 
bidder. 

1060,  1048,  1049,  1050. 

1060).  ART.  1076.  The  second  sale  may  be  omitted  if  the  execution 
creditor  should  should  prefer  to  levy  execution  against  the  first  success- 
ful bidder  for  the  total  value  of  the  sale,  which  he  may  do  with  a  copy 
of  the  act  of  such  sale  and  a  certificate  of  the  Judge  as  to  the  non-pay- 
ment. 

1061. 


204 

1061).  ART.  1077.  The~execution  for"  the  amount  of  the  difference 
may  be  demanded,  either  by  the  execution  creditor  if  he  should  not  wish 
or  not  be  able  to  extend  the  original  execution  to  other  property  of  the 
execution  debtor;  or  by  the  latter  if  the  execution  creditor  should 
extend  said  execution. 

1119. 

1062).  ART.  1078.  If  there  should  be  no  person  making  a  bid  at 
two-thirds  the  appraised  value,  the  Judge  shall  set  another  day  for  the 
sale,  which  cannot  be  held  less  then  eight  nor  more  than  fifteen  days 
from  the  date  of  the  notice  of  the  order  directing  a  new  sale,  and  the 
latter  shall  be  advertised  by  means  of  permanent  posters.  In  such  case, 
a  bid  for  any  sum  is  an  admissible  bid. 

1047. 

1063).  ART.  1079.  If  the  proceeds  from  the  sale  should  not  cover  the 
debt  and  the  costs,  the  execution  shall  be  extended  to  other  property  of 
the  debtor,  if  the  creditor  should  denounce  such  property,  and  it  shall 
be  advertised,  appraised  and  sold  as  prescribed  for  the  first  property,  if 
the  creditor  should  not  wish  at  once  abandoning,  the  extension,  to  pro- 
ceed in  accordance  with  the  provisions  of  the  following  article.* 

986. 

1064).  ART.  1080.  When  a  bond  in  warranty  shall  have  been  fur- 
nished, and  it  shall  result  that  the  property  to' which  it  refers  does  not 
belong  to  the  debtor,  or  that  the  proceeds  therefrom  are  insufficient 
to  cover  the  debt  and  the  costs,  an  application  for  a  writ  of  execution 
may  be  made,  with  the  undertaking  of  bond  and  a  copy  of  the  proper 
record  of  the  executory  action,  against  the  surety  for  the  balance  re- 
maining due,  the  proceedings  against  the  principal  debtor  being  discon- 
tinued, reserving,  however,  the  rights  of  the  surety,  to  recover  from  the 
execution  debtor  what  he  may  pay  for  him. 

Expressly  repealed  by  art.  338  of  Law  105  of  1890,  and  subrogated  by 
the  following : 

1065).  ART.  187  of  Law  105  of  1890.  When  a  bond  in  warranty 
shall  have  been  furnished  and  it  shall  result  that  the  property  to  which 
it  refers  does  not  belong  to  the  debtor,  or  that  the  proceeds  thereof  do 
not  cover  the  debt  and  the  costs,  with  a  copy  of  the  act  or  undertaking 
of  bond  and  of  all  that  which  may  be  proper  of  the  record  of  the  execu- 
tory action,  on  the  petition  of  the  creditor,  executory  proceedings  may 

*  The  provisions  of  "  the  following  article"  cannot  be  observed,  because  said  fol- 
lowing article  has  been  repealed.  Hence,  it  is  necessary  to  consider  tin  article  which 
subrogated  it,  which  is  ordinal  article  1065. 


205 

be  instituted  against  the  surety  for  the  balance  remaining  due,  the  pro- 
ceedings against  the  principal  debtor  being  discontinued,  reserving,  how- 
ever, the  rights  of  the  surety  to  recover  from  the  execution  debtor  what 
he  may  pay  for  him . 

981  subdivision  4. 

1066).  ART.  1081.  Whenever  executory  proceedings  shall  be  annulled 
after  the  sale  and  after  the  delivery  of  the  thing  and  its  price,  the  suc- 
cessful bidder  shall  have  the  right  to  retain  the  thing  sold  until  what  he 
may  have  paid  therefor  be  returned  to  him,  in  addition  to  interest  at  the 
rate  of  one-half  per  cent  per  month  to  be  paid  by  the  person  who  may 
have  caused  the  nullity. 

823,  1067,  1055. 


THIRTY-FOURTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

1067).  ART.  1082.  No  sale  in  which  the  successful  bidder  shall  have 
fulfilled  his  obligations  can  be  annulled  except  in  an  ordinary  action 
separate  from  the  executory  action,  and  the  nullities  in  the  executory 
action  shall  not  affect  the  sale,  with  the  exception  of  the  third 
nullity  mentioned  in  article  916.* 

1066,  1055. 

The  following  article  is  supplemental : 

1068).  ART.  214  of  Law  105  of  1890.  The  sale  of  property  not  de- 
posited in  the  legal  form  is  null ;  but  it  is  presumed,  for  the  purpose  of 
this  article,  that  the  deposit  was  duly  made,  if  in  the  respective  act  it  be 
stated  that  the  actual  delivery  of  the  property  to  the  depositary  was 
made. 

158. 

1069).  ART.  1083.  With  the  exception  of  the  notice  of  the  writ  of 
execution,  which  must  be  served  personally  upon  the  debtor  or  upon 
his  legal  representative,  the  other  notifications  in  these  proceedings  may 
be  made  by  means  of  writs  or  edicts,  in  the  form  established  in  chapter 
6,  Title  I,  of  this  book,  the  Secretary  being  required  in  every  case  to  note 
the  hour  they  are  made. 

227,  981  subdivision  i. 

*  Art.  916  referred  to  herein  is  ordinal  art.  806,  which  has  been  repealed;  but  said 
article  was  subrogated  by  ordinal  article  823,  whose  second  subdivision  is  substan- 
tially identical  to  the  third  subdivision  of  the  article  repealed, 


206 

1070).  ART.  1084.  The  execution  creditor  and  the  execution  debtor 
may  appeal  from  any  judgment  or  decision  rendered  in  these  proceed- 
ings, within  forty-eight  hours  after  notice  of  the  judgment  or  decision; 
but  the  execution  creditor  shall  be  allowed  the  appeal  in  a  suspensive 
effect,  and  the  execution  debtor  in  the  devolutive  effect  only,  with  the 
exception  established  in  article  1086.* 

979,  1071,  1080. 

1071).  ART.  1085.  When  in  accordance  with  the  provisions  of  the 
preceding  article  an  appeal  should  be  granted  in  a  devolutive  effect,  the 
original  record  shall  be  transmitted  to  the  superior  court,  and  a  copy 
thereof  shall  be  retained  in  the  lower  court  for  the  continuation  of  the 
proceedings,  which  copy  shall  be  made  at  the  cost  of  the  appellant. 

This  copy  must  be  made  and  compared  with  the  original  within  the 
term  which  the  Judge  may  designate,  and  if  this  should  not  be  done 
owing  to  the  fault  of  the  appellant,  the  Judge  on  the  petition  of  the 
opposite  party,  and  in  view  of  the  report  of  the  Secretary  only,  shall 
declare  the  appeal  to  be  abandoned. 

The  record  shall  be  transmitted  after  the  citation  of  both  parties,  even 
though  the  appeal  granted  should  be  from  the  decision  denying  the  exe- 
cution in  whole  or  in  part.  The  effect  of  this  citation  is  to  cause  the 
execution  debtor  to  become  a  party  in  the  appeal. 

THIRTY-FIFTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

1072).  ART.  1086.  If  the  execution  debtor  should  appeal  from  the 
decision  dismissing  his  exceptions,  or  from  the  judgment  directing  the 
sale,  the  appeal  shall  be  granted  in  a  suspensive  effect,  and  it  shall  be 
heard  and  decided  by  the  Court  as  an  interlocutory  issue. 

1070,  783  to  787. 

1073).  ART.  1087.  Decisions  of  the  Federal  Supreme  Court,  declaring 
the  exceptions  proposed  by  the  execution  debtor  to  be  or  not  to  be  estab- 
lished, and  those  rendered  by  Judges  of  First  Instance,  from  which  an 
appeal  shall  not  have  been  taken  in  due  time,  become  final.  But  the 
execution  debtor  may  in  an  ordinary  action,  instituted  upon  the  termi- 
nation of  the  execution,  seek  to  recover  what  he  may  have  paid  in  the 
latter  and  the  damage  he  may  have  sustained,  provided  that  he  shall 
establish  a  legal  exception,  of  which  he  did  not  nor  could  have  had 
knowledge  in  the  term  granted  him  in  the  executory  action  to  plead  an 
exception. 

689,  695,  1074. 
*  Art.  1086  herein  referred  to  is  ordinal  art.  1072. 


207 

The  following  article  is  supplemental : 

1074).  ART.  205  of  Law  105  of  1890.  A  simple  judgment  of  advertise- 
ment and  sale  in  an  executory  action,  and  that  declaring  the  exceptions 
interposed  in  such  proceedings  to  be  or  not  to  be  established,  do  not 
serve  as  basis  for  an  excepting  of  res  judicata  in  an  ordinary  action. 

1028,  1073,  695- 

1075).  ART.  1088.  A  decision  directing  the  discontinuance  of  the  exe- 
cution shall  tax  the  costs  against  the  execution  creditor. 

1076).  ART.  1089.  A  decision  directing  the  execution  to  be  proceeded 
with,  as  issued,  shall  tax  the  costs  against  the  execution  debtor,  and 
after  the  taxation  shall  have  been  made,  they  shall  be  paid  before  any- 
thing else  from  the  money  attached  or  retained,  or  from  the  proceeds,  of 
the  property  to  be  sold.  The  judicial  costs  arising  and  which  may  be 
necessary  to  continue  the  execution,  shall  be  paid  by  the  execution 
creditor,  who  shall  have  the  right  to  collect  them  together  with  the 
other  costs  belonging  to  him. 

1016,  1051,  1056. 

1077).  ART.  1090.  Executory  actions  of  lesser  import  shall  be  insti- 
tuted verbally  before  the  Corregidores,  who  shall  arrange  their  pro- 
cedure to  conform  to  the  provisions  of  this  section. 

1078. 

1078).  ART.  1091.  If  the  interest  involved  in  the  executory  suit  in 
its  principal  action  should  not  exceed  twenty  pesos,  a  succinct  record  of 
the  complaint  shall  be  entered  upon  the  book  of  suits  of  such  character 
as  also  of  the  documents  or  judicial  act  upon  which  it  is  based,  and 
of  the  subsequent  proceedings  and  acts  to  the  conclusion  of  the  pro- 
ceedings. 

The  Secretary  shall,  upon  an  order  of  the  Corregidor,  issue  to  any  of 
the  parties  the  certified  copies  of  these  records  which  they  may  request ; 
but  he  shall  do  so  at  the  cost  of  the  party  making  the  request. 

1079. 

1079).  ART.  1092.  If  the  interest  involved  in  the  complaint  should 
exceed  twenty  pesos,  in  its  principal  action,  the  proceedings  shall  also  be 
verbal;  but  a  process  shall  be  formed,  in  which  a  record  shall  be  made 
of  all  the  acts  and  proceedings  in  the  suit,  and  to  which  must  also  be 
attached  the  documents  which  the  parties  may  present,  exactly  as  in 
ordinary  or  common  actions. 

1077. 


208 

1080).  ART.  1093.  If  the  interest  involved  in  the  executory  action 
should  not  exceed  twenty  pesos,  the  only  remedy  against  the  rulings 
and  decisions  of  the  Corregidores  shall  be  a  complaint. 

But  if  said  interest  should  exceed  twenty  pesos,  an  appeal  lies  to  the 
Prefect  of  the  respective  Territory,  exactly  as  in  executory  actions  of 
greater  import. 

1081).  ART.  1094.  In  executory  actions  upon  complaints  not  exceed- 
ing twenty  pesos  in  their  principal  action,  all  the  terms  shall  be  reduced 
to  one-half  those  established  in  this  section  for  executory  actions  of 
greater  import. 

333- 

SECOND  SECTION. 
Execution  by  coercive  jurisdiction. 

1082).  ART.  1095.  Officials  who  under  the  law,  have  coercive  juris- 
diction for  the  collection  of  the  public  revenues,  shall  employ  executory 
process  in  the  exercise  of  such  jurisdiction,  in  accordance  with  the  pro- 
visions of  the  preceding  section. 

Such  officials  shall  proceed  in  such  cases  with  some  of  the  subordinate 
employees  of  their  offices,  a  Secretary  ad  hoc,  who  shall  take  oath  to 
faithfully  discharge  his  duties. 

1091.     1 66  and  1253  of  the  Fiscal  Code. 

1083).  ART.  1096.  In  these  proceedings,  in  addition  to  the  documents 
and  acts  mentioned  in  article  1010,  the  following  carry  execution : 

1 .  The  final  balances  against  the  persons  liable  to  the  Treasury  pre- 
pared by  the  General  Accounting  Office  (Oficina  General  de  Cuentas),  or 
by  any  other  employees  discharging  similar  duties  recognized  by  the  law. 

2.  The  copies  of  the  declaration  made  by  the  collectors,  against 
the  debtors  to  the  Fisc  for  taxes  or  contributions. 

3.  The  copies  of  the  decrees  which,  in  the  exercise  of  their  functions, 
may  be  issued  by  public  officials  imposing  fines  to  be  turned  into  the 
federal  treasury.* 

1084).  ART.  1097.  Officials  exercising  coercive  jurisdiction  shall, 
independently  of  any  other  authority  or  official,  take  all  the  necessary 
steps  to  bring  the  proceedings  to  the  point  of  citing  the  execution  debtor 
for  judgment  of  sale,  and  after  having  been  cited,  if  he  should  within 
the  legal  term  oppose  exceptions,  the  execution  official  shall  transmit 
the  record  to  the  proper  Judge  of  First  Instance.  If  the  latter  should 

*  Art.  1010  referred  to  herein  is  ordinal  art.  959,  which  was  subrogated  by  ordinal 
art.  960. 


209 

declare  the  exceptions  not  to  lie  he  shall  return  the  record  in  order  that 
the  execution  may  be  proceeded  with ;  the  same  shall  be  done  if,  having 
admitted  them,  he  should  declare  them  not  established. 

The  record  having  been  received  in  any  of  the  preceding  cases,  the 
execution  official  shall  proceed  with  the  execution  in  the  terms  pre- 
scribed in  the  preceding  section. 

1085) .  ART.  1098.  In  the  executions  levied  by  virtue  of  the  documents 
mentioned  in  the  three  paragraphs  of  article  1096,  the  following  excep- 
tions only  shall  be  admissible : 

1 .  Falsity  of  the  document  in  whole  or  in  a  substantial  part. 

2.  Payment;  and 

3.  An  error  in  account.* 

1086).  ART.  1099.  If  the  exceptions  should  be  declared  established, 
the  Judge  shall  return  the  record  to  the  execution  official  in  order  that 
the  judgment  may  be  executed. 

1087).  ART.  1 100.  Appeals  from  these  executions  shall  be  allowed  to 
the  Federal  Supreme  Court. 

1088).  ART.  noi.  When  proceedings  are  to  be  had  outside  the  place 
of  the  residence  of  the  execution  official,  the  latter  may  address  commu- 
nications to  his  agents  or  to  the  Judges  of  the  place  in  which  the  pro- 
ceedings are  to  be  had. 

1089).  ART.  1 102.  If  there  should  be  a  defendant  in  intervention 
claiming  ownership  the  execution  official  shall  transmit  the  opposition 
with  the  record  to  the  proper  Judge  of  First  Instance,  in  order  that  the 
latter  may  decide  whether  the  opposition  is  admissible  or  not,  and,  in 
the  former  case  hear  and  decide  the  matter. 

If  there  should  be  a  plaintiff  in  intervention,  he  shall  also  transmit 
the  opposition  to  the  competent  Judge  with  a  transcript  of  the  proceed- 
ings had,  making  in  the  original  record  the  proper  entry,  in  order 
that  the  Judge  may  take  cognizance  of  the  suit  in  intervention,  and 
decide  it. 

1090).  ART.  1103.  In  addition  to  the  provisions  of  the  preceding 
section,  those  of  the  two  which  follow  are  common  to  these  actions. 

The  following  article  is  supplemental : 

1091).  ART.  96  of  Law  30  of  1888.  Any  collector  having  charge  of  the 
collection  of  public  taxes,  whether  destined  to  the  ordinary  expenses  of 
the  Administration,  or  whether  to  be  employed  upon  works  for  which 
the  Government  may  be  duly  authorized  by  Law,  is  a  Treasury  Collector 
wTho  exercises  the  coercive  jurisdiction  referred  to  in  art.  1253  of  the 
Fiscal  Code  and  Section  2,  of  Title  XI,  Book  II  of  the  Judicial  Code. 

The  fourth  paragraph  of  article  6  of  Law  23  of  1887,  is  amended  accord- 
ing to  the  terms  of  this  article,  and  article  1253  of  the  Fiscal  Code  and 


*  Art.  1096  cited  herein  is  ordinal  art.  1083. 


2IO 

Section  2  of  Chapter  I,  Title  II,  Book  II  of  the  Judicial  Code,  are  thus 
supplemented.* 

THIRD  SECTION. 
Provisions  supplementary  to  the  two  preceding  sections. 

1092).  ART.  1104.  Fruits  hanging  upon  plantations  cannot  be  at- 
tached except  within  six  weeks  preceding  the  ordinary  time  of  maturity 
and  harvest  of  such  fruits ;  and  when  such  attachment  takes  place,  the 
writ  shall  state  the  kind  of  fruits,  the  name  and  area  of  the  plantation 
and,  if  possible,  the  names  of  the  adjoining  owners. 

981,  subdivision  5. 

1093).  ART.  1105.  Even  though  the  attachment  should  not  include 
the  land  upon  which  the  plantation  is  situated,  a  receiver  (inter-ventor 
depositario]  shall  be  appointed  in  accordance  with  the  terms  and  for  the 
purposes  of  article  383.  Said  receiver  shall  be  furnished  a  copy  of  the 
writ  of  attachment,  and  the  plantation  shall  be  turned  over  to  him  in 
accordance  there  with.f 

156. 

1094.  ART.  1 1 06.  Hanging  fruits  may  be  sold  before  or  after  harvest- 
ing at  the  option  of  the  creditor. 

1027,  1028,  1097. 

1095).  ART.  1107.  The  kind  of  fruits  shall  be  stated  in  the  announce- 
ments, which  shall  be  posted  for  eight  days  in  the  place  of  sale,  and  in 
the  district  in  which  the  plantation  is  situated. 

1035,  .1036. 

1096).  ART.  1 108.  The  sale  may  be  held,  if  deemed  advisable  in  the 
place  where  the  plantation  is  situated,  or  in  another  district  of  the 
circuit  where  there  is  reason  to  expect  a  larger  number  of  bidders. 

1040,  1041. 

1097).  ART.  1 109.  If  the  creditor  should  prefer  that  the  sale  be  made 
after  the  harvest  of  the  fruits,  the  receiver  shall  be  authorized  by  the 
Judge  to  incur  the  cost  of  harvesting,  and  such  other  expenses  as  may 

*  Art.  338  of  Law  105  of  1890  repealed  all  the  provisions  regarding  civil  procedure 
contained  in  Law  30  of  1888;  nevertheless,  we  reproduce  this  article  as  it  is  per- 
tinent and  because,  furthermore,  being  supplemental  to  the  Fiscal  Code,  it  is  in 
force  as  to  the  latter. 

f  Art  383  cited  herein  is  ordinal  art.  1 53. 


211 

be  necessary  for  the  preservation  and  delivery  of  the  fruits  in  the  place 
where  they  are  to  be  sold. 

The  sale  shall  be  conducted  as  is  a  sale  of  movables. 

1096,  1035. 

1098).  ART.  1 1 10.  When  the  net  annual  product  of  the  income, 
salary  or  pension  attached,  should  be  fixed  in  its  quota,  an  appraise- 
ment shall  not  be  necessary,  and  the  creditor  may  choose  between  receiv- 
ing one-half  the  proceeds  in  the  same  manner  as  the  execution  debtor 
or  owner  did,  until  the  entire  debt  shall  have  been  paid,  or  the  sale  in 
advance  of  the  income  for  a  number  of  months  or  years,  sufficient  to 
cover  the  debt  and  the  costs. 

In.  the  first  case,  the  creditor  is  entitled  to  the  annual  interest  of  the 
portions,  which  at  the  time  of  each  installment  shall  be  unpaid,  includ- 
ing in  the  total  sum  the  amount  of  the  costs,  and  estimating  the  in- 
terest, if  any  should  be  stipulated  at  twelve  per  cent  per  annum. 

In  the  second  case,  there  shall  be  offered  at  public  sale  one-half  the 
interest,  salary  or  pensions  attached  for  the  number  of  months  which 
may  be  necessary,  in  the  judgment  of  the  highest  bidder,  to  cover  pres- 
ently in  cash  the  total  amount  of  the  debt  and  the  costs.  The  highest 
bidder  shall  in  this  case  be  the  one  who  offers  to  give  this  sum  for  the 
lowest  number  of  months  or  years. 

IIOI. 

1099).  ART.  mi.  When  the  annual  product  of  the  income  attached 
should  not  be  fixed  but  eventual,  the  appraisers  shall  estimate  its  amount 
approximately,  by  virtue  of  the  data  which  they  may  be  able  to  obtain, 
and  which  they  shall  carefully  examine. 

1 100).  ART.  1 1 12.  Under  the  penalty  of  the  person  who  is  to  pay  the 
income  attached  becoming  obligated  as  a  warrantor,  the  Judge 
shall  order  such  person  to  submit  a  sworn  statement  showing  the 
origin  of  the  income,  its  capital,  the  property  which  assures  it,  if  it 
should  consist  of  a  mortgage,  and  the  charges  thereon.  The  author  of 
the  statement  shall  likewise  state  whether  other  judicial  attachments  of 
the  same  income  shall  have  been  levied  in  his  hands. 

The  penalty  indicated  in  the  first  part  of  this  article  shall  be  incurred, 
not  only  on  a  failure  to  present  the  statement  referred  to  therein,  but 
also  for  any  falsity  which  may  be  committed  therein,  whether  in  favor 
or  to  the  prejudice  of  the  execution  debtor. 

I  102. 

noi).  ART.  1113.  The  warrantor  of  an  attachment  consisting  of  an 
annual  income  of  a  rent  charge  (censo},  salary,  pension  or  anything 
similar,  is  under  the  obligation  of  paying  the  debt  and  the  costs,  or  the 


212 

default  thereof,  if  the  creditor  should  not  agree  to  receive  one-half  said 
income,  as  its  owner  did,  and  thus  gradually  recover  his  claim,  and  if, 
furthermore,  there  is  no  bidder  who  offers  to  give  the  full  sum  of  the 
debt  and  the  costs,  for  the  right  of  himself  collecting  said  half  of  the  in- 
come during  a  certain  number  of  months  or  years. 

981  subdivision  4. 

1102).  ART.  1114.  After  the  annual  income  of  a  debtor  shall  have 
been  attached,  it  cannot  be  attached  in  favor  of  other  creditors,  unless 
the  first  one  having  been  paid,  such  half  shall  remain  free;  or  for  the 
time  it  may  remain  so. 

1 1  oo  first  par. 

1103).  ART.  1115.  The  Notary  of  the  place  where  the  attachment  of 
the  annual  income  of  real  property  is  levied,  shall  be  notified  thereof, 
and  said  official,  or  the  person  acting  in  his  stead  in  said  place,  shall 
keep  a  register  of  the  said  attachments,  noting  in  the  margin  of  each 
record  the  raising  of  the  attachment  or  the  sale,  as  the  case  may  be,  in 
order  that  the  creditors  may  know,  or  be  able  to  ascertain  exactly,  the 
condition  of  their  debtors  who  enjoy  property  of  this  character. 

FOURTH  SECTION. 
Intervention  in  Executory  Actions.* 

1104).  ART.  1116.  Any  person  desirous  that  with  the  product  of  the 
property  of  a  debtor  which  has  been  attached,  he  also  be  paid  what  the 
the  latter  owes  him,  shall  have  the  right  to  bring  an  intervention  claim- 
ing a  privilege  (terceria  coadyuvante)  which  shall  be  admissible  at  any 
stage  of  the  executory  action,  provided  that  the  execution  creditor  shall 
not  have  been  paid  with  the  product  of  the  property  attached,  and  that 
the  interventor  present  evidence,  even  though  it  be  summary,  of  his 
credit. 

1 105).  ART.  1117.  The  admission  of  an  intervention  claiming  a  privi- 
lege does  not  suspend  the  executory  action,  but  it  does  defer  the  pay- 
ment until  the  preference  between  the  creditors  shall  be  decided,  after 
the  measures  established  for  insolvency  proceedings,  which  shall  begin 
when  the  probatory  term  is  opened,  which  shall  be  decreed  in  the  same 
decision  which  admits  the  intervention. 

If  before  a  definitive  judgment  is  rendered  upon  an  intervention  claim- 
ing a  privilege  new  plaintiffs  in  intervention  should  appear,  new  pro- 

*  All  the  articles  which  constitute  this  Section  in  the  last  edition,  viz,  1 104  to  1 1 1 2, 
were  expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated  by  ordinal 
1113  to  1145. 


213 

ceedings  shall  be  instituted  with  regard  to  them,  with  which  those  pur- 
sued up  to  that  time  shall  be  consolidated. 

1106).  ART.  1118.  When  a  third  person  should  oppose  the  execution, 
claiming  that  the  attached  property  is  his,  his  opposition  shall  be  ad- 
mitted, whatever  be  the  stage  of  the  executory  action,  unless  payment 
shall  have  been  made  to  the  execution  creditor  with  the  proceeds  of  the 
property  attached,  and  provided  that  the  interventor  attached  to  his 
bill  the  document  or  the  summary  evidence  establishing  that  the  prop- 
erty claimed  belongs  to  him. 

1107).  ART.  1119.  Whenever  an  excluding  intervention  (as  that  re- 
ferred to  in  the  preceding  article  is  called)  shall  be  admitted,  the  Judge 
in  the  same  judgment  shall  take  evidence  in  the  incident  as  to  the  owner- 
ship of  the  property  the  subject  of  the  opposition,  the  procedure  in  an 
ordinary  action  being  pursued  in  the  subsequent  proceedings,  and  the 
announcement  and  sale  of  the  property  involved  in  the  intervention 
being  ordered  suspended. 

1108).  ART.  1 1 20.  When  by  a  final  judgment  an  excluding  opposi- 
tion should  be  declared  as  not  established,  the  execution  shall  continue 
as  to  the  property  which  it  was  desired  to  exclude,  from  the  stage  it  had 
reached  when  suspended  by  the  admission  thereof. 

If  the  opposition  should  be  declared  to  be  established,  the  attachment 
on  the  property  shall  be  raised  in  order  that  it  may  be  delivered  to  the 
interventor,  and  the  execution  shall  continue  upon  the  other  property  of 
the  execution  debtor  which  may  be  attached,  or  that  which  may  again 
be  produced  by  him,  or  denounced  by  the  execution  creditor. 

1 109) .  ART.  1 1 21.  If  before  a  definitive  judgment  should  be  rendered 
upon  a  demand  in  intervention,  new  opposers  should  appear  also  claim 
ing  ownership,  a  new  action  shall  be  instituted  with  regard  to  them,  to 
which  the  action  conducted  up  to  then  shall  be  consolidated. 

i  no).  ART.  1 1 22.  The  consolidation  ordered  in  the  preceding  article 
shall  also  lie  when  the  various  interventions  should  be  some  claiming 
ownership  and  others  a  privilege. 

mi).  ART.  1123.  The  procedure  established  by  art.  1117,  shall  be 
observed  in  every  case  of  consolidation  of  interventions. 

1112).  ART.  1124.  Every  decision  not  one  of  mere  practice  in  demands 
of  intervention,  whether  such  intervention  be  one  claiming  ownership 
or  a  privilege,  may  be  appealed  from  to  the  Federal  Supreme  Court,  and 
the  appeal  from  the  judgment  deciding  such  actions,  shall  be  heard  as 
that  from  definitive  judgments  rendered  in  ordinary  actions  or  in  insol- 
vency proceedings,  according  to  whether  the  intervention  shall  have 
been  one  claiming  ownership  or  a  privilege. 

All  these  articles  of  the  Fourth  Section  have  been  repealed  as  stated, 
and  subrogated  by  the  following :  1 1 13  to  1 145. 

1113).  ART.  215  of  Law  105  of  1890.     An  intervention  claiming  a 


214 

privilege  (tercerta  coadyuvante)  is  the  petition  of  the  third  person  request- 
ing that  the  proceeds  of  the  property  attached  in  an  execution  be  used 
to  cover  a  credit  which  gives  rise  to  a  personal  action  against  the  execu- 
tion debtor,  or  a  real  action  against  said  property. 

1121,  1132,  to  1135. 

1114).  ART.  2 1 6  of  Law  105  of  1 890.  Upon  the  admission  of  an  inter- 
vention claiming  a  privilege,  the  execution  creditor  may  introduce 
those  which  he  may  deem  advisable  to  obtain  the  payment  of  that  which 
the  execution  debtor  may  owe  him,  and  which  may  not  be  comprised  in 
the  execution. 

1124. 

1115).  ART.  217  of  Law  105  of  1890.  An  intervention  claiming 
ownership  (ierceria  excluyente)  is  the  petition  of  a  third  person  request- 
ing that  he  be  declared  to  have  a  better  right  than  the  execution  debtor, 
the  execution  creditor  and  other  opponents  to  the  ownership  of  all  or  of 
some  of  the  property  attached.  Rights  limiting  the  ownership  of  an 
estate  which  may  have  been  attached  as  free  from  such  encumbrance 
may  also  be  claimed  in  this  manner. 

The  value  of  the  property  which  may  have  been  sold  may  also  be 
claimed  by  means  of  an  intervention  claiming  ownership,  upon  the 
establishment  of  a  right  to  such  property.  If  what  is  claimed  should  be 
a  right  other  than  ownership,  upon  the  right  of  action  being  duly  estab- 
lished, there  shall  be  ordered  paid  with  the  proceeds  of  the  property, 
the  amount  which  experts  may  fix  as  the  value  of  such  right ;  all  of 
which  is  without  prejudice  to  the  revendication. 

1120,  1127,  1130,  1035,  1132,  1133,  1135. 

1116).  ART.  218  of  Law  105  of  1890.  Interventions  may  be  brought 
immediately  after  the  attachment  of  the  property;  and  the  right  to 
interpose  interventions  claiming  a  privilege  ceases  upon  payment  hav- 
ing been  made  to  the  creditor  from  the  proceeds  of  the  property  sold. 

222. 

Amended  by  the  following  article : 

1117).  ART.  38  of  Law  105  of  1890.  Interventions  claiming  a  privi- 
lege, interposed  in  executory  action,  before  the  rendition  of  a  judgment 
for  advertisement  and  sale,  shall  be  reserved  until  such  judgment  shall 
be  rendered. 

Law  169  of  1896,  article  24,  is  additional. 


215 

in8).  ART.  219  of  Law  105  of  1890.  In  order  that  an  intervention 
claiming  a  privilege  or  ownership  may  be  adopted,  it  is  necessary  that 
it  be  made  by  means  of  a  written  petition,  drawn  upon  the  proper  paper 
and  in  the  form  required  by  law  for  all  complaints  in  ordinary  actions, 
the  interventor  being  obliged  to  attach  to  his  bill  the  document  or  the 
evidence  upon  which  he  bases  his  opposition. 

1126. 

1119).  ART.  220  of  Law  105  of  1890.  When  in  an  executory  action 
interventions  claiming  ownership  of  a  privilege  shall  be  admitted,  the 
execution  creditor  recovers  the  right  which,  according  to  article  1027  of 
the  Judicial  Code  and,  those  preceding  this  one,  he  has  at  the  time  of  the 
institution  of  executory  proceedings  to  denounce  more  property  belong- 
ing to  the  execution  debtor,  unless  a  new  bond  in  warranty  should  be 
constituted.* 

986,  1063,  1143. 

1120).  ART.  221  of  Law  105  of  1890.  The  right  to  interpose  in  in- 
tervention claiming  ownership  ceases  with  regard  to  the  property 
already  sold,  without  prejudice  to  the  right  granted  by  art.  2i3pf  this 
Law.f 

1116. 

1 121).  ART.  222  of  Law  105  of  1890.  Upon  the  admission  of  the  de- 
mand in  intervention,  it  shall  be  referred  to  the  execution  debtor,  the 
execution  creditor  and  to  such  interventors  as  there  may  be,  when  the 
oppositions  of  the  latter  should  refer  to  the  same  property. 

The  term  of  reference  shall  be  of  three  days,  for  the  execution  debtor 
as  for  the  execution  creditor;  but  if  there  should  already  be  one  or 
more  interventors,  the  term  of  reference  shall  be  a  common  one  of  six 
days. 

222,   1132,   1133,   1135. 

1122).  ART.  223  of  Law  105  of  1890.  Upon  the  admission  of  the 
first  intervention  claiming  a  privilege,  the  public  shall  be  notified  of  the 
admission  thereof  by  means  of  an  edict,  which  shall  be  posted  in  the 
office  of  the  Secretary  of  the  Court,  in  a  place  specially  set  aside  for  the 
posting  of  edicts  of  this  character.  Mention  shall  be  made  in  said  edict 
of  the  executory  action,  in  which  the  intervention  has  been  introduced, 
with  a  statement  of  the  names  of  the  parties.  The  edict  shall  remain 
posted  for  ninety  days,  and  a  copy  thereof  shall  be  published  six  times 
in  the  official  journal  of  the  Department,  within  the  said  ninety  days. 

*  Art.  1027  cited  herein  is  ordinal  art.  981. 
f  Art.  213  herein  cited  is  ordinal  art.  1055. 


216 

It  shall  be  understood  that  in  accordance  with  this  article  one  edict 
only  is  required  to  be  posted  and  published,  upon  the  admission  of  the 
first  intervention  claiming  a  privilege,  and  not  as  many  edicts  as  there 
are  interventions  interposed 

1017. 

1123).  ART.  224  of  Law  105  of  1890.  During  the  time  the  edict  re- 
ferred to  in  the  preceding  article  is  posted  and  published,  the  course  of 
the  executory  action  shall  not  be  stayed  ;  but  payment  of  the  creditors 
with  the  proceeds  of  the  property  sold  shall  be  postponed  until  said  term 
shall  have  expired,  the  edict  shall  have  been  published  and  the  final  rule 
fixing  the  order  of  preference  made. 

The  interventions  interposed  shall  be  given  their  legal  course,  even 
though  it  should  be  within  the  term  that  the  edict  is  to  be  posted  with- 
out prejudice  to  the  provisions  of  article  800  of  the  Judicial  Code.* 


1124).  ART.  225  of  Law  105  of  1890.  Upon  the  expiration  of  the 
ninety  days  referred  to  in  article  223,  no  intervention  claiming  a  privi- 
lege shall  be  admitted  which  is  based  upon  a  document  or  proof  of  a  date 
subsequent  to  the  writ  of  execution.  f 

1116,  1117,  1127. 

1  125).  ART.  226  of  Law  105  of  1890.  For  the  purposes  of  the  preced- 
ing article,  the  provisions  of  article  1762  shall  be  observed  as  to  the 
manner  of  deducing  the  date  of  private  instruments  with  relation  to 
third  persons. 

1126).  ART.  2  27  of  Law  1  05  of  1890.  If  the  intervention  be  one  claim- 
ing ownership,  the  proof  upon  which  it  is  based  must  be  the  title  or 
document  that,  in  accordance  with  the  civil  law  in  force  when  the  owner- 
ship of  the  thing  claimed,  or  the  right  therein,  was  necessary  to  acquit 
the  ownership  of  the  thing  or  the  right  whose  recognition  is  requested. 

1118. 

1127).  ART.  228  of  Law  105  of  1890.  When  the  writ  of  execution  is 
directed  against  a  mortgaged  estate,  no  intervention  claiming  ownership 
shall  be  admitted  which  is  based  upon  a  document  of  a  date  subsi-qiu'iit 
tot  hat  of  the  instrument  which  served  as  a  basis  for  the  writ  of  excr  u  t  i<  >i  i  . 

1128,  1129,  1124. 

*  Art.  800  cited  is  ordinal  article  652. 
f  Art.  223  cited  is  ordinal  ari.  1  1  22. 


2iy 

1 128).  ART.  229  of  Law  105  of  1890.  He  who  believes  himself  en- 
titled to  the  ownership  of  a  mortgaged  estate  against  which  proceedings 
are  brought  as  such,  and  should  base  his  right  upon  an  instrument  of  a 
date  subsequent  to  that  upon  which  the  mortgage  was  constituted,  may 
appear  in  the  suit,  provided  payment  shall  not  as  yet  have  been  made  to 
the  creditor,  and  interpose  an  exception  of  the  nullity  of  the  mortgage 
instrument,  or  of  the  record,  or  of  the  entry,  or  of  the  contract  recited 
therein.  This  exception  shall  be  heard  and  decided  as  any  incidental 
issue. 

1129).  ART.  230  of  Law  105  of  1890.  The  exception  of  nullity  re- 
ferred to  in  the  preceding  article  shall  not  be  admitted  if  it  shall  have 
already  been  pleaded  by  the  execution  debtor,  and  disposed  of  by  a 
final  judgment;  but  he  who  believes  himself  as  having  a  right  to  the 
ownership,  may  become  a  party  to  the  incidental  issue  to  which  the  ex- 
ception of  nullity  pleaded  by  the  execution  debtor  may  have  given  rise, 
whatever  be  the  stage  of  such  incidental  issue,  and  without  causing  the 
terms  to  retroact.  Nevertheless,  if  the  exception  of  nullity  pleaded  by 
the  execution  debtor  should  have  been  decided  negatively,  for  lack  of 
evidence,  said  third  person  shall  have  the  right  to  plead  the  same  excep- 
tion. 

1 130).  ART.  231  of  Law  105  of  1890.  In  addition  to  the  persons  men- 
tioned in  article  871  of  the  Judicial  Code,  who  cannot  intervene  when  the 
execution  of  a  judgment  is  in  question,  the  persons  referred  to  in  articles 
846  et  seq.,  of  Title  IV,  Book  II  of  said  Code,  cannot  intervene.* 

710,  752,  1055. 

1131).  ART.  232  of  Law  105  of  1890.  The  ruling  admitting  an  inter- 
vention, may  be  appealed  from  in  a  devolutive  effect,  and  that  deny- 
ing it,  may  be  appealed  from  in  both  effects. 

The  appeals  referred  to  in  the  preceding  paragraph,  do  not  in  any 
manner  whatsoever  affect  the  continuation  of  the  executory  action. 

1132).  ART.  233  of  Law  105  of  1890.  Parties  in  the  intervention  are 
the  opposer,  who  acts  as  plaintiff,  and  the  execution  creditor  and 
debtor  who  act  as  defendants,  who  may  be  represented  by  the  attor- 
neys in  fact  constituted  for  the  executory  action. 

742,  994,  second  par.,  1127,  1133,  1135. 

1133).  ART.  234  of  Law  105  of  1890.  Notice  of  the  ruling  admitting 
an  intervention  shall  be  served  personally  upon  the  execution  creditor, 
the  execution  debtor,  the  person  who  made  the  opposition  and  the  other 
opposers  admitted,  who  may  have  an  interest  in  the  same  property,  the 
proceedings  conforming,  in  a  proper  case,  to  articles  222  and  223  of  this 

*  Arts.  846  and  871,  cited  herein,  are  ordinal  arts.  710  and  752  respectively. 


218 

Law.  Notice  of  the  ruling  denying  an  intervention,  shall  be  served,  as 
in  ordinary  cases,  such  intervention  being  considered  as  an  issue  inci- 
dental to  the  executory  action.* 


1134).  Art.  235  of  Law  105  of  1890.  An  intervention  having  been 
admitted,  if  the  other  parties  should  state  within  forty-eight  hours  after 
service  of  notice,  that  they  agree  to  the  claim  of  the  interventor,  judg- 
ment shall  be  rendered,  after  citation,  if  such  were  the  only  intervention, 
but  if  there  should  .be  one  or  more  other  interventions  that  newly  in- 
troduced shall  be  consolidated  therewith  and  shall  pursue  their  course. 

1136. 

1135).  ART.  236  of  Law  105  of  1890.  Every  intervention  shall  be 
heard  and  decided  in  accordance  with  the  procedure  of  the  respective 
ordinary  action,  and  such  procedure  shall  also  be  pursued  even  though 
there  should  be  two  or  more  interventions. 

1121,  1132,  to  1134. 

1136).  ART.  237  of  Law  105  of  1890.  All  interventions  interposed 
shall  be  consolidated,  whether  they  claim  a  privilege  or  ownership,  even 
though  one  or  more  of  them  should  have  been  definitively  decided  at 
the  time  new  ones  are  interposed  ;  this  consolidation  shall  be  ordered  so 
that  in  the  judgment  of  preference  or  of  exclusion,  the  rights  of  all  and 
every  one  of  the  interventors  may  be  determined. 

1134- 

1137).  ART.  238  of  Law  105  of  1890.  If  in  an  execution  of  greater 
import  one  or  more  interventions  of  lesser  import  should  take  place  ;  or 
if  in  an  execution  of  lesser  import  there  should  be  one  or  more  interven- 
tions of  greater  import,  the  respective  Circuit  Judge  shall  take  cognizance 
of  the  interventions. 

1138).  ART.  239  of  Law  105  of  1890.  When  real  property  shall  be 
attached  in  an  executory  action,  the  execution  creditor  is  obliged  to 
present,  within  the  term  which  the  Judge  of  the  cause  may  fix,  a  certi- 
ficate from  the  Registrar  of  public  instruments  establishing  the  unen- 
cumbered character  of  the  estate,  or  the  charges  to  which  it  may  be 
subject. 

1139  to  1142. 

1139).  ART.  240  of  Law  105  of  1890.  If  the  certificate  should  show 
that  the  estate  is  encumbered,  the  Judge  shall  order  ex  proprio  motu 

*  Arts.  222  and  223  are  ordinal  arts.  1121,  1122. 


219 

that  the  creditors  who  hold  the  mortgage  on  said  estate  be  personally 
cited,  summoning  them  to  appear  within  a  reasonable  term  which  he 
shall  fix,  to  avail  themselves  of  their  rights  in  the  suit  in  intervention. 

1140).  ART.  241  of  Law  105  of  1^90.  Unless  the  fact  of  such  summons 
having  been  made  shall  appear  of  record,  the  sale  of  the  realty  shall  not 
be  proceeded  with. 

1141).  ART.  242  of  Law  105  of  1890.  If  the  creditors  cannot  be 
found  in  order  to  be  summoned  personally,  by  reason  of  their  names  being 
unknown  or  their  whereabouts  ignored,  the  Judge  shall  direct  that  they 
be  summoned  and  that  counsel  be  appointed  to>them  in  accordance  with 
the  general  provisions;  after  which  if  they  should  not  appear  in  due  time, 
the  execution  shall  be  proceeded  with  and  completed  with  a  hearing  of 
counsel. 

The  amount  pertaining  to  the  creditors  referred  to  shall,  be  deposited 
with  a  person  of  notorious  honesty,  with  the  proper  securities,  or  with 
a  responsible  credit  institution. 

1142).  ART.  243  of  Law  105  of  1890.  If  the  mortgage  creditors  re- 
ferred to  having  been  summoned,  they  should  fail  to  enter  an  appearance 
within  the  term  which  the  Judge  may  have  assigned  them,  nor  before 
payment  is  made  to  the  execution  creditor,  this  shall  not  be  an  obstacle 
to  the  payment  in  due  time  to  the  latter  and  to  the  other  creditors 
of  what  may  be  due  them  by  way  of  principal,  interest  and  costs.  If 
there  should  be  any  surplus,  the  amount  due  the  said  creditors  shall  be 
taken  therefrom  and  deposited  in  accordance  with  the  provisions  of  the 
last  paragraph  of  the  preceding  article.  The  persons  interested  shall 
be  informed  of  this  deposit  by  means  of  an  advertisement  which  shall 
be  published  three  times  in  the  official  periodical  of  the  respective 
Department,  and  upon  the  expiration  of  six  months,  if  no  claim  what- 
soever should  have  been  made  on  the  part  of  the  said  creditors,  the 
money  shall  be  turned  over  to  the  execution  debtor. 

1143).  ART.  244  of  Law  105  of  1890.  He  who  intervenes  claiming  a 
privilege  with  a  document  which  carries  execution,  has  the  right  to 
extend  the  execution  by  denouncing  more  property  of  the  debtor. 

986  and  1063. 

1144).  ART.  245  of  Law  105  of  1890.  When  there  are  funds  in  cash, 
belonging  to  one  execution,  and  which  as  a  consequence  of  an  interven- 
tion or  another  cause  cannot  be  paid  to  the  execution  creditor  at  once, 
they  shall  be  deposited  with  the  person  offering  the  highest  interest  and 
the  best  security.  The  Judge  shall  qualify  the  bond,  and  if  the  security 
should  not  consist  of  a  mortgage,  it  may  be  furnished  by  means  of  an 
act  drawn  in  the  record  which  shall  be  signed  by  the  Judge,  the  Secre- 
tary and  the  sureties.  This  act  shall  have  the  force  of  a  public  instru- 
ment. 


22O 

If  the  security  offered  should  be  equal,  preference  shall  be  given  the 
person  who  offers  the  highest  rate  of  interest ;  and  if  the  interest  rate  be 
identical,  the  better  security  shall  be  preferred.  In  order  to  make  these 
impositions,  the  Judge  shall  direct  that  posters  be  affixed,  at  least  three 
days  in  advance,  upon  the  door  of  the  court  room  and  in  other  of  the 
most  public  places,  indicating  the  date  and  the  time  the  deposit  is  to  be 
made. 

1 141  second  par.,  824  second  par. 

1145).  ART.  246  of  Law  105  of  1890.  If  the  execution  creditor 
should  abandon  the  suit,  the  interventions  claiming  a  privilege  shall 
not  be  terminate4  if  they  should  be  based  upon  a  document  carrying 
execution.  In  such  case,  if  there  be  one  intervention  only  the  inter- 
ventor  shall  be  considered  the  execution  creditor,  and  the  execution 
debtor  shall  be  cited  for  judgment  of  advertisement  and  sale.  If  there 
should  be  two  or  more  interventions,  they  shall  continue  their  legal 
course,  and  after  a  judgment  allowing  the  preference  shall  have  been 
rendered,  it  shall  be  fulfilled.  Even  though  the  title  upon  which  the 
interventors  base  their  opposition  should  not  carry  execution  the  inter- 
ventions shall  continue  their  legal  course  if  judgment  allowing  the  pref- 
erence shall  have  been  rendered  and  the  rights  of  the  intervenors  should 
have  been  recognized  thereby.  In  all  cases  in  which  the  interventions 
do  not  terminate  by  virtue  of  the  abandonment  of  the  proceedings,  the 
interventors  may  request  the  sale  at  auction  of  the  property  attached. 

659,  682,  1136. 

CHAPTER  II. 
Bankruptcy  Proceedings. 

1146).  ART.  1125.  The  Judge  of  First  Instance  of  the  Circuit,  prov- 
ince or  territory  where  the  debtor  may  have  his  domicile,  is  of  com- 
petent jurisdiction  to  declare  the  property  of  a  debtor  subject  to  pro- 
ceedings of  his  creditors  and  to  take  cognizance  of  the  proceedings  conse- 
quent upon  this  declaration : 

1147).  ART.  1126.  Proceedings  shall  be  instituted  against  the  prop- 
erty of  a  debtor : 

1.  By  the  voluntary  assignment  thereof  which  he  may  make. 

1 150.     1672  et  seq.  of  the  Civil  Code. 

2.  By  reason  of  execution  having  been  levied  by  two  or  more  creditors 
and  his  failure  to  present  or  the  absence  of  a  denunciation  of  sufficient 
property  for  the  full  payment  of  the  debts  the  basis  of  the  execution ; 
and 


221 

3.  By  reason  of  a  declaration  of  bankruptcy,  in  accordance  with  the 
respective  provisions  of  the  Code  of  Commerce. 

1152.     i2itoi8iof  the  Code  of  Commerce. 

1 148).  ART.  1 127.  In  the  third  case  of  the  preceding  article,  the  same 
Judge  who  declares  the  bankruptcy  shall  in  the  same  proceeding  decree 
a  general  meeting  of  creditors. 

122,  133  to  136,  143,  144  to  147,  153  et  seq.,  of  the  Code  of  Com- 
merce. 

1149).  ART.  1128.  If  within  thirty  days  of  the  summons  which  will 
be  treated  of  below,  any  of  the  creditors  should  charge  the  assignment 
to  be  fraudulent,  this  question  shall  be  passed  on  in  the  said  proceed- 
ings of  creditors,  which  question  the  Judge  shall  decide  in  the  rule 
graduating  the  credits. 

1 128,  1 133  subdivision  3,  810  to  819  of  the  Penal  Code. 

1150).  ART.  1129.  The  debtor  making  an  assignment  of  property 
must  present  to  the  Judge,  at  the  time  of  so  doing,  two  sworn  statements, 
one  of  the  property,  rights  and  actions  which  he  may  have,  and  the 
other  of  his  liabilities,  stating  the  names  of  his  creditors,  the  amount  of 
each  credit  and  its  origin. 

1171. 

1151).  ART.  1130.  When  a  general  meeting  of  creditors  shall  have 
been  called  by  reason  of  executions,  the  Judge  shall  direct  that  the 
debtor,  if  he  has  appeared  present  within  six  days  the  statements  re- 
ferred to  in  the  preceding  article. 

1171. 

1152).  ART.  1131.  When  a  meeting  of  creditors  shall  have  been 
called  by  reason  of  the  bankruptcy  of  a  merchant,  who  shall  have 
failed  to  present  the  general  balance  of  his  business,  or  a  memorandum 
or  statement  expressing  the  direct  and  immediate  causes  of  his  bank- 
ruptcy, the  Judge  shall  direct  the  debtor,  if  present,  to  comply  with 
this  obligation  within  six  days,  in  the  same  decree  declaring  the  bank- 
ruptcy. 

1171. 

1 153).  ART.  1132.  In  any  case  in  which  the  property  of  a  debtor  shall 
be  declared  subject  to  bankruptcy  proceedings  the  following  measures 
shall  be  taken: 


222 

1.  The  attachment  and  deposit  of  the  property  of  the  insolvent,  and 
the  judicial  seizure  of  the  books,  papers  and  documents  of  his  affairs. 

1136  to  1161. 

2.  The  appointment  of  a  receiver,  to  the  satisfaction  of  the  Judge,  in 
order  that  he  may  assume  the  custody  and  preservation  of  the  property 
attached  until  the  syndics  shall  be  appointed. 

• 
1157  last  par.,  1163,  2194,  1232. 

3.  The  call  by  edicts  of  all  the  creditors,  and  of  the  absent  debtor, 
summoning  them  to  enter  an  appearance  in  the  proceedings  in  person 
or  through  an  attorney  in  fact,  with  a  warning  that  their  omission  or 
neglect  will  cause  them  to  suffer  the  loss  and  damage  which  the  bank- 
ruptcy proceedings  and  their  determination  may  entail. 

1154,  1155,  1219,  1220. 

4.  The  personal  citation  of  the  debtor  and  of  the  known  creditors,  what- 
ever be  their  residences. 

1219,  825,  832  subdivision  4,  833  last  par. 

5.  The  detention  of  the  correspondence  of  the  insolvent  for  the  pur- 
poses which  will  be  stated  below :  and 

1170. 

6.  The  call  of  the  creditors  for  a  general  meeting. 

1154).  ART.  1133.  In  the  edicts  of  summons  referred  to  in  the  3d 
paragraph  of  the  preceding  article,  an  order  shall  be  included  directing 
that  no  one  make  any  payments,  nor  deliver  property  to  the  bankrupt 
but  that  they  do  so  to  the  receiver  appointed,  under  penalty  of  such  per- 
sons who  make  such  payments  or  deliveries  to  the  insolvent  not  being 
discharged  from  their  respective  obligations. 

All  persons  having  in  their  possession  belongings  of  the  bankrupt  shall 
also  be  directed  to  inform  the  Judge  of  the  cause  of  the  same. 

Finally,  the  day  and  hour  for  the  general  meeting  of  the  creditors 
shall  be  announced. 

1 153  last  par.,  1 156  third  subdivision. 

1 155).  ART.  1 134.  The  edicts  shall  be  posted  on  the  main  door  of  the 
office  of  the  Secretary  of  the  Court,  and  a  copy  thereof  shall  IK-  insi TU •<! 
three  times  in  one  or  more  newspapers,  if  any  of  the  parlies  should  ix 
quest  that  this  be  done  at  their  cost. 


223 

The  edicts  shall  also  be  posted  in  places  where  creditors  of  the  bank- 
rupt are  known  to  live,  for  which  purpose  the  Judge  shall  issue  the 
proper  dispatches. 

1153  subdivision  3. 

1 156).  ART.  1135.  It  shall  be  the  duty  of  the  Judge  of  the  cause : 

1.  To  authorize  all  the  acts  pertaining  to  the  seizure  of  the  property 
of  the  insolvent,  and  of  the  papers  pertaining  to  their  affairs. 

1157  to  1161. 

2.  To  issue  the  orders  necessary  to  provide  for  the  safety  and  preser- 
vation of  the  property  constituting  the  assets. 

1157- 

3.  To  preside  at  the  general  meeting  of  creditors. 

4.  To  make  an  examination  of  all  the  books,  documents  and  papers 
relating  to  the  business  of  the  bankrupt,  in  order  to  make  the  orders 
regarding  the  assets. 

1157  subdivisions  2  and  3. 

5.  To  supervise  all  the  transactions  of  the  receiver  and  of  the  syndics 
of  the  bankruptcy  proceedings,  and  see  to  the  proper  management  and 
administration  of  the  property  of  the  bankrupt. 

6.  The  other  functions  specially  vested  in  him  by  this  Code. 

1 157).  ART.  1 136.  The  seizure  of  the  property  and  papers  of  the  bank- 
rupt shall  be  effected  in  the  following  manner : 

1 .  All  the  warehouses  and  deposits  of  merchandise  and  effects  of  any 
kind  of  the  bankrupt  shall  be  locked  under  two  keys,  of  which  the  Judge 
shall  keep  one  and  the  depositary  or  receiver  the  other. 

2.  The  same  shall  be  done  with  the  office  of  the  bankrupt,  if  he  have 
any,  a  record  being  made  of  the  number,  kinds  and  condition  of  the 
account  books  which  may  be  found,  a  note  being  made  in  each  one  of 
them,  immediately  after  the  last  item,  of  the  written  sheets  which  it 
contains,  which  note  shall  be  signed  by  the  Judge  and  the  Secretary. 

The  bankrupt  may  attend  the  said  acts  in  person  or  through  an 
attorney  in  fact,  and  if  he  should  so  request,  he  will  be  given  a  third  key. 

1162. 

3.  At  the  time  of  the  occupation  of  the  office,  an  inventory  shall  be 
made  of  the  money,  drafts,  bills  payable  and  other  credit  documents 
belonging  to  the  assets,  and  they  shall  be  deposited  in  a  chest  having 
two  keys,  the  necessary  precautions  for  their  safety  being  taken. 

1 1 66. 


224 

4.  The  movable  property  of  the  bankrupt  which  may  be  in  store- 
houses and  which  cannot  be  placed  under  lock  and  key,  and  the  live 
stock  shall  be  turned  over  to  the  receiver,  the  insolvent  being  left  noth- 
ing but  the  property  not  subject  to  attachment,  in  accordance  with  art. 
1048.* 

5.  The  real  property  shall  be  placed  under  the  provisional  adminis- 
tration of  the  receiver,  who  shall  collect  its  fruits  and  products,  taking 
care  to  avoid  any  malversation ;  and 

6.  With  regard  to  the  property  situated  without  the  place  in  which 
the  proceedings  are  being  had,  similar  measures  shall  be  taken  by  the 
Judge  whom  the  Judge  of  the  cause  must  commission  for  the  purpose. 

If  the  holders  of  this  property  should  be  persons  of  means  and  of 
notorious  responsibility,  in  view  of  the  value  of  such  property,  the  de- 
posit shall  be  made  with  them. 

1153  subdivision  2. 

1158).  ART.  1137.  If  the  bankrupt  should  be  a  general  partnership, 
the  property  of  all  the  partners  who  appear  liable  in  the  articles  of  co- 
partnership for  the  results  of  the  negotiations,  shall  be  seized. 

This  provision  shall  not  apply  to  joint  stock  companies  or  associations 
or  to  limited  companies,  that  is  to  say  those  which  are  formed  of  shares 
the  value  of  which  constitutes  the  only  capital  of  its  business. 

1159).  ART.  1138.  In  order  to  effect  the  occupation  or  attachment 
mentioned,  the  Judge  shall  take  into  consideration  the  balance,  or  the 
statement  of  property  which  the  bankrupt  may  have  presented;  and 
in  the  absence  of  such  data,  the  property  notoriously  owned  by  the 
bankrupt,  and  that  which  the  creditors,  upon  swearing  not  to  act 
maliciously,  may  denounce,  under  their  liability,  to  be  the  property  of 
the  bankrupt  shall  be  delivered  and  deposited. 

1150  to  1152. 

1 1 60).  ART.  1139.  If  the  property  produced  by  the  bankrupt  or  de- 
nounced by  the  creditors  should  be  in  the  possession  of  a  third  person 
who  claims  it  as  his  own,  at  the  time  of  the  attachment  thereof,  if  1  Ik- 
proceedings  of  attachment  and  deposit  should  have  been  conducted 
with  such  person,  or  within  three  days  after  personal  service  upon  him 
of  notice  of  such  attachment,  provided  that  the  sale  shall  not  have 
taken  place  if  such  proceedings  had  not  been  served  upon  him,  the  prop- 
erty shall  be  left  in  his  possession,  provided  that  he  furnish  a  bond,  to 
the  satisfaction  of  the  Judge,  to  return  it  in  the  condition  in  which  it  may 
have  been  when  the  attachment  was  levied,  and  with  all  its]fruits  pro- 
vided that  it  be  declared  that  such  property  belongs  to  the  insolvent 
debtor. 

*  Art.  iCHScitedisordinal^art.  1018. 


225 

If  the  property  in  question  should  be  fungible  (consumable)  the  bond 
shall  be  to  secure  the  return  of  the  same  quantity  and  quality  as  the 
property  attached. 

1161. 

1161).  ART.  1140.  If  the  creditor  making  the  denunciation  should 
be  of  notorious  responsibility,  in  the  opinion  of  the  Judge  of  the  cause, 
the  creditor  of  ownership  may  require  that  he  furnish  security  to  the 
satisfaction  of  the  Judge  to  answer  for  the  damage  which  the  denuncia- 
tion may  cause  him,  if  such  denunciation  should  be  declared  to  be  un- 
founded. 

1162).  ART.  1141.  The  Judge,  with  the  attendance  of  the  depositary, 
may  examine  all  the  books  and  papers  of  the  bankrupt  without  remov- 
ing them  from  the  office,  in  order  to  secure  the  data  and  memoranda 
which  he  may  need,  in  order  properly  to  discharge  his  duties  in  connec- 
tion with  the  bankruptcy  proceedings. 

The  bankrupt  may  attend  this  act  either  in  person  or  through  an 
attorney  in  fact,  for  which  purpose  he  shall  be  previously  summoned, 
and  the  day  and  hour  fixed. 

1157  subdivision  2. 

1163).  ART.  1142.  As  depositary  shall  be  appointed  a  person  of 
notorious  responsibility  and  good  credit,  whether  he  be  a  creditor  of  the 
insolvent  or  not;  and  before  entering  upon  the  discharge  of  his  duties 
he  shall  swear  to  discharge  them  well  and  faithfully. 

1153  subdivision  2. 

1164).  ART.  1143.  Drafts,  promissory  notes  and  any  other  paper 
representing  past  due  credits,  shall  be  collected  by  the  depositary,  and 
those  payable  in  a  different  domicile,  shall  be  forwarded  by  him  for  col- 
lection to  a  responsible  person,  with  the  authority  of  the  Judge. 

1165,  1169. 

1165).  ART.  1144.  It  shall  be  the  duty  of  the  depositary  under  his 
liability,  to  take  the  steps  necessary  with  regard  to  drafts  which  are  to 
be  presented  for  acceptance,  or  be  protested  for  non-acceptance  or 
non-payment. 

1 1 66).  ART.  1 145.  In  order  to  take  the  steps  mentioned  in  the  preced- 
ing two  articles  in  due  time,  the  documents  of  credit  which  are  to  be  pre- 
sented for  acceptance  or  payment,  shall  be  withdrawn  from  deposit  a 
sufficient  time  in  advance. 

1157,  subdivision  3. 


226 

1167).  ART.  1146.  All  sums  collected  belonging  to  the  estate  of  the 
bankrupt,  shall  be  deposited  with  the  money  and  paper  of  the  same  kind. 

1157  subdivision  3,  1199,  1201. 

1168).  ART.  1147.  The  endorsements,  receipts,  and  any  other  docu- 
ment of  obligation  or  discharge  drawn  by  the  depositary,  must  be 
authenticated  with  the  countersignature  of  the  Judge. 

1164. 

1169).  ART.  1148.  The  depositary  cannot  sell  the  effects  of  the  estate 
of  the  bankrupt,  unless  they  be  such  as  cannot  be  kept  without  deterio- 
rating or  rotting.  Nor  can  he  make  any  other  expenditures  but  those 
absolutely  necessary  for  the  custody  and  preservation  of  the  effects 
which  he  may  have  on  deposit. 

In  order  to  do  either,  he  shall  require  the  permission  of  the  Judge. 

1194. 

1170).  ART.  1149.  The  correspondence  of  the  bankrupt  shall  be 
placed  in  the  hands  of  the  Judge,  who  shall  open  it  in  the  presence  of 
such  bankrupt  or  of  his  attorney  in  fact,  delivering  to  the  depositary  the 
letters  which  relate  to  the  affairs  of  the  bankrupt,  and  to  the  insolvent 
or  to  his  attorney  in  fact  such  as  refer  to  other  matters. 

After  the  appointment  of  syndics,  they  shall  receive  the  correspon- 
dence, always  calling  the  bankrupt  or  his  attorney  in  fact  to  open  the 
letters  and  deliver  to  him  those  not  pertaining  to  business. 

1153  subdivision  5. 

1171).  ART.  1150.  In  the  event  that  by  reason  of  absence,  incapacity 
or  negligence  -of  the  bankrupt,  he  should  fail  to  prepare  the  general 
balance  of  his  affairs,  or  the  lists  of  his  assets  and  liabilities,  the  Judge 
shall  immediately  appoint  a  merchant  or  a  suitable  person  to  prepare 
these  papers,  granting  him  for  this  purpose  a  brief  and  peremptory 
period  which  cannot  exceed  fifteen  days.  The  commissioners  shall  be 
given  the  books  and  papers  of  the  insolvent  in  the  presence  of  the  Judge 
and  in  the  same  office. 

1150  to  1152. 

1 172).  ART.  1151.  The  day  to  be  set  for  the  general  meeting  of  credi- 
tors shall  be  not  less  than  thirty  nor  more  than  forty  days,  from  the  date 
of  the  declaration  of  bankruptcy. 

ii53*subdivision  6. 


227 

1 1 73).  ART.  1152.  Upon  the  arrival  of  the  day  and  hour  set  for  the 
general  meeting  of  creditors,  which  shall  be  held  in  the  court  room,  the 
Judge  shall  designate  which  of  those  appearing  has  the  right  to  attend 
the  deliberations  of  the  meeting  and  cast  a  vote. 

This  right  is  vested  in  the  creditors  who  establish  that  they  are  such 
by  the  sworn  statement  of  the  bankrupt  or  by  the  balance  of  the  books 
presented,  and  those  who  may  have  entered  an  appearance  in  the  pro- 
ceedings basing  their  claims  upon  documents  which  establish  the  credits 
they  claim. 

1174).  ART.  1153.  Upon  the  meeting  being  constituted,  the  creditors 
shall  be  shown  the  balance  and  the  lists  presented  by  the  bankrupt,  or 
formed  as  provided  by  article  1 1 50,  the  Judge  ex  proprio  motu,  or  at  the 
instance  of  any  of  those  present,  making  all  the  verifications  which 
may  be  deemed  necessary  with  the  books  and  documents  of  the  bank- 
rupt, which  shall  be  held  at  hand. 

The  depositary  shall  also  present  to  the  meeting  a  detailed  report 
upon  the  condition  of  the  branches  of  the  bankrupt  and  the  opinion 
which  can  be  formed  as  to  the  results  thereof.  He  shall  likewise  pre- 
sent to  the  meeting  a  memorandum  of  what  he  may  have  collected  and 
expended  to  that  date,  as  such  depositary.* 

1175).  ART.  1154.  If  the  bankrupt  or  his  attorney  in  fact  should 
make  propositions  at  this  meeting  regarding  the  extrajudicial  payment 
of  the  creditors,  such  propositions  shall  be  discussed,  and  if  they  should 
be  unanimously  approved  by  the  creditors  or  their  attorneys  in  fact  em- 
powered to  compromise,  the  bankruptcy  proceedings  shall  be  termi- 
nated, provided  that  the  creditors  present  compose  more  than  two- 
thirds  of  the  creditors  of  the  bankrupt  recognized  up  to  that  time,  and 
that  their  claims  against  the  debtor  compose  more  than  three  fifths  of 
the  total  liabilities  of  the  bankrupt. 

1176  to  1178. 

1176).  ART.  1155.  The  arrangements  referred  to  in  the  preceding 
article,  can  relate  only  to  the  proportionate  rate  under  which  all  the 
creditors  are  to  be  paid,  and  the  term  within  which  payment  is  to  be 
made,  and  must  never  extend  to  special  extensions  or  reductions  which 
shall  not  have  been  agreed  to  by  those  prejudiced  thereby. 

1177).  ART.  1156.  If  there  should  be  no  agreement,  at  the  same 
meeting  syndics  and  experts  for  the  appraisal  of  the  assets  shall  be 
appointed,  in  order  that  the  proceedings  may  be  continued;  but  with- 
out prejudice  to  such  proceedings  being  suspended  at  any  time,  by  un- 
animous agreement  of  the  creditors  and  the  bankrupt. 

1178).  ART.  1157.  Private  agreements  of  the  creditors  with  the  bank- 
rupt are  null,  unless  they  be  reduced  to  a  simple  remission  of  their 

*  Art.  1 1 50  cited  is  ordinal  art.  1171. 


228 

claims;  and  furthermore  the  creditors  shall  lose  any  rights  they  may 
have  in  the  proceedings,  and  the  bankruptcy  shall  be  declared  to  be  a 
fraudulent  one. 

1179).  ART.  1158.  The  number  of  syndics  shall  be  fixed  in  advance 
by  the  Judge,  according  to  the  extent  of  the  business  of  the  bankrupt 
but  such  number  can  never  exceed  three.* 

1 1 80).  ART.  1159.  The  appointment  of  each  syndic  shall  be  made  by 
a  majority  vote  of  all  the  creditors  attending  the  general  meeting.  The 
majority  is  constituted  by  one-half  and  one  or  more  of  the  number  of 
persons  voting,  representing  three-fifths  of  the  total  credits  which  they 
comprise  among  them  all, 

1181).  ART.  1 1 60.  The  appointment  of  experts  for  appraisal  shall  be 
made  in  the  same  manner  as  that  of  the  syndics. 

1182).  ART.  1161.  Any  creditor  who  is  such  of  his  own  right  may  be 
appointed  a  syndic,  provided  that  he  be,  furthermore,  a  responsible 
person,  over  twenty-one  years  of  age  and  with  a  habitual  residence  in 
the  place  where  the  proceedings  are  being  held. 

An  association,  juristic  person  or  moral  entity  may  be  appointed 
syndic. 

1189. 

1183).  Art.  1162.  The  minutes  of  the  general  meeting  of  creditors 
shall  be  signed  by  the  Judge,  the  creditors,  and  the  Secretary  of  the 
court. 

1184).  ART.  1163.  The  syndics  shall  take  oath  to  discharge  their 
trust  in  accordance  with  the  laws. 

1192. 

1 185) .  ART.  1 164.  The  following  are  the  duties  of  the  syndics : 

1.  The  administration  of  all  the  property  and  assets  of  the  bankrupt. 

2 .  The  collection  and  receipts  of  all  the  credits  composing  the  assets, 
and  the  payment  of  the  expenses  of  administration  necessary  for  the 
preservation  and  benefit  (exploitation)  of  the  property ;  and 

1199,  1200,  1201,  1202. 

3.  The  defense  of  all  the  rights  of  the  bankrupt,  and  the  exercise  of 
the  actions  and  exceptions  which  may  be  proper. 

1196. 

1186).  ART.  1165.  The  syndics  may,  with  the  authority  of  the 
Judge  of  the  cause,  and  under  the  liability  of  the  former  and  tin 

*  For  provisions  regarding  syndics  see  ordinal  arts.  1180,  1181,  1182, 118410  1202, 
1230,  1231,  1232. 


229 

latter,  appoint  attorneys  in  fact  for  the  discharge  of  one  or  more  of 
their  attributes. 

1196. 

1187).  ART.  1 1 66.  Upon  the  petition  of  any  creditor,  summarily  estab- 
lished, upon  abuses  of  the  syndics  in  the  discharge  of  their  functions  the 
Judge  must  decree  their  removal,  and  appoint  the  persons  who  are  to 
substitute  them  from  among  those  who  at  the  general  meeting  of  credi- 
tors secured  the  next  lower  number  of  votes  than  those  appointed  by  the 
creditors. 

1190. 

1 1 88).  ART.  1167.  The  removal  of  the  syndics  shall  also  be  decreed 
when  it  shall  be  requested  by  all  the  creditors  present,  even  without  the 
statement  of  a  cause,  and  in  such  case  they  may  designate  the  substitute 
or  substitutes  who  are  to  be  appointed  by  the  Judge. 

1189).  ART.  1 1 68.  If  one  of  the  syndics  being  a  creditor,  his  credit 
should  not  be  recognized  in  the  decision  at  first  instance,  he  shall  by 
such  failure  be  removed  from  said  office,  and  the  Judge  shall  appoint 
the  person  who  is  to  substitute  him. 

1182. 


1190).  ART.  1 169.  The  syndics  shall  be  responsible  to  each  and  every 
one  of  the  creditors  for  the  faults  they  may  commit  in  the  discharge  of 
their  duties,  which  are,  in  addition  to  those  imposed  upon  them  by  this 
Title,  those  which  every  paid  agent  has,  under  the  substantive  laws. 

1191).  ART.  1170.  The  syndics  shall  receive  the  same  fees  as  the 
depositaries,  and  in  addition,  one-half  per  cent  of  tne  sums  they  may 
collect  for  debts  of  the  bankrupt;  they  must  also  be  compensated  for 
their  labor  in  the  bankruptcy  proceedings,  being  allowed  such  compen- 
sation as  may  be  fixed  by  experts,  provided  that  they  have  not  given 
rise  to  improper  delays. 

1192).  ART.  1171.  As  soon  as  the  syndics  shall  have  accepted  and 
been  sworn  into  their  office,  they  shall  proceed  to  receive  all  the  belong- 
ings of  the  bankrupt,  the  books  and  other  papers  which  may  be  deposited 
under  a  formal  inventory,  which  shall  be  signed  by  the  syndic  receiving 
and  the  depositary  making  the  delivery,  which  inventory  shall  be  made 
a  part  of  the  record  of  the  case. 

The  property  and  effect  that  for  any  reason  whatsoever  may  be  in  a 
place  other  than  that  where  the  proceedings  are  being  held,  shall  be 
included  in  the  inventory  as  appearing  from  the  records  in  the  proceed- 
ings and  the  books  and  papers  of  the  bankrupt;  and  the  Judge  shall 


230 

issue  orders  directing  that  said  property  be  placed  at  the  disposition  of 
the  syndics,  excepting  such  as  are  claimed  by  an  action  of  ownership. 

1184. 

1 193) .  ART.  1172.  The  depositary  shall  render  a  formal  account,  with 
the  proper  vouchers,  to  the  syndics  within  three  days  after  their  appoint- 
ment ;  and  for  the  approval  of  this  account  an  incidental  issue  shall  be 
heard  and  decided  in  the  manner  prescribed  by  article  1200.* 

1232. 

1194).  ART.  1173.  The  consumable  property  of  the  assets  shall  be 
sold  by  the  syndic?  with  the  authority  of  the  Judge  of  the  proceedings, 
at  such  price  as  the  latter  may  determine. 

1169,  1195. 

1 1 95) .  ART.  1 1 74.  The  syndics  cannot  purchase  for  themselves  nor  for 
any  other  person,  the  property  of  the  bankrupt,  of  whatever  kind  it  be, 
and  should  they  do  so  in  their  own  name  or  in  the  name  of  another  the 
property  purchased  under  this  prohibition  shall  be  confiscated,  for  the 
benefit  of  the  bankruptcy  assets;  the  purchaser  being  obliged  to  pay 
the  price,  if  he  should  not  have  done  so. 

1196).  ART.  1175.  The  syndics  shall  institute  and  continue,  with  the 
previous  knowledge  of  the  Judge,  the  civil  actions  in  which  the  bank- 
rupt is  or  may  become  a  plaintiff. 

1185  subdivision  3,  1165. 

1197).  ART.  1176.  The  bankrupt  shall  give  the  syndics  all  the  infor- 
mation and  data  they  may  demand  of  him  and  which  he  may  have  con- 
cerning the  operations  and  interests  of  the  bankruptcy.  The  same 
syndics  may  employ  the  bankrupt  in  the  work  of  administration  and 
liquidation,  under  their  dependency  and  liability. 

1198. 

1198).  ART.  1177.  The  bankrupt  has  in  his  turn  the  right  to  demand 
of  the  syndics,  through  the  Judge  of  the  bankruptcy,  the  information  he 
may  desire  regarding  his  business,  and  to  make  such  observations  to 
them,  through  the  same  channel,  as  he  may  deem  proper  with  regard 
to  improvements  in  the  administration  and  the  liquidation  of  the  assets 
and  liabilities. 

1199).  ART.  1178.  The  Judge  shall  not  permit  the  syndics  to  retain 
in  their  possession  the  cash  funds  belonging  to  the  assets,  but  shall 

*  Art.  1200  cited,  is  ordinal  art.  1221. 


231 

oblige  them  to  deposit  weekly  all  that  they  may  have  collected,  leaving 
them  only  such  amount  as  the  Judge  may  deem  sufficient  to  attend  to 
the  current  expenses  of  the  administration. 

1167. 

1200).  ART.  1179.  The  syndics  shall  present  monthly  to  th^  Judge  a 
statement  of  the  administration  of  the  bankruptcy  for  such  action  as 
may  be  proper  for  the  benefit  of  the  persons  interested  therein. 

All  the  creditors  requesting  it,  may  obtain  at  their  expense,  copies  of 
the  statements  submitted  by  the  syndics,  and  state  in  view  thereof  all 
that  they  may  deem  advisable  in  favor  of  the  interests  of  the  assets. 

1201).  ART.  1180.  At  the  instance  of  the  syndics  the  Judge  may 
direct  the  transfer  of  the  funds  from  the  deposit  chest  to  any  bank,  sav- 
ings institution  or  other  similar  establishment  which  there  may  be  in 
the  republic. 

1167. 

1202).  ART.  1181.  The  syndics  shall  take  care  that,  under  their  liabil- 
ity all  formalities  which  maybe  necessary  for  the  preservation  of  the  rights 
of  the  bankrupt  be  observed  with  regard  to  bills  of  exchange,  public 
instruments,  effects  of  credit,  and  any  other  document  belonging  to  the 
former. 

1203).  ART.  1182.  Bankrupts  who  are  entitled  under  the  law  to 
maintenance  from  the  property  composing  the  assets,  shall  petition  the 
Judge  for  the  assignment  of  an  allowance  for  support,  which  the  Judge 
shall  fix  at  a  reasonable  figure,  the  respective  incidental  issue  being  first 
instituted  and  decided. 

An  appeal  in  a  devolutive  effect  only  shall  lie  from  the  decision  ren- 
dered in  such  case  assigning  the  allowance. 

1204).  ART.  1183.  The  Judge  shall  draw  in  favor  of  his  Secretary 
upon  the  depositary  or  syndic  of  the  bankruptcy,  for  the  sums  required 
for  the  indispensable  judicial  costs  for  the  prosecution  of  the  proceedings. 

1205).  ART.  1184.  The  property  of  the  bankrupt  having  been  at- 
tached, deposited  and  appraised,  the  Judge  shall  immediately  direct  that 
it  be  advertised  and  sold  in  the  manner  prescribed  in  articles  1061  and 
1071  for  advertisements  and  sales  in  executory  actions,  excepting  only 
the  property  claimed  under  an  action  of  ownership,  which  property 
shall  not  be  advertised  nor  sold  unless  it  be  declared  to  belong  to  the 
assets  of  the  bankruptcy.* 

1206).  ART.  1185.  Upon  the  termination  of  the  thirty  days  fixed  in 
the  edicts  calling  the  meeting,  the  Judge  shall,  ex  proprio  motu,  take 

*  Arts.  1061  to  1071  cited,  are  the  following:  ordinal  arts.  1036,  1038  to  1042, 
1045,  1046,  1047,  1051  and  1052. 


232 

evidence  in  the  cause  for  a  term  of  forty  days,  which  term  can  be  ex- 
tended only  by  the  necessity  of  taking  the  evidence  in  a  place  beyond 
that  of  the  proceedings,  the  proceedings  being  had  in  accordance  with 
the  provisions  of  articles  957  and  958.* 

1153  subdivision  3. 

1207).  ART.  1  1  86.  Upon  the  expiration  of  the  probatory  term,  the 
Secretary  shall  announce  it,  without  the  necessity  of  a  petition  to  that 
effect  ;  and  the  Judge  shall  immediately  set  a  term  of  twenty  days  for 
the  parties,  their  attorneys  in  fact  or  patrons  (patronos)  to  examine  the 
record  in  the  office  of  the  Secretary  and  prepare  their  pleadings  which 
they  shall  submit  during  this  term. 

1208).  ART.  1187.  Upon  the  expiration  of  the  twenty  days  set  for 
pleading  the  Secretary  shall  announce  it  ex  proprio  motu,  and  the  Judge 
shall  direct  that  citation  for  judgment  issue,  which  he  shall  render 
within  the  next  twenty  days,  qualifying  and  graduating  the  credits 
which  may  have,  been  allowed  in  the  proceedings. 

333,  334- 

1209).  ART.  1  1  88.  The  national  tribunals  and  courts  shall  in  bank- 
ruptcy proceedings  the  cognizance  of  which  pertains  to  them,  graduate 
the  credits  of  the  creditors,  in  so  far  as  they  do  not  bear  any  relation  to 
the  Fisc,  by  applying  the  substantive  legislation  in  force  in  the  respec- 
tive State  at  the  time  of  the  acquisition  of  the  credit. 


1210).  ART.  1189.  The  formalities  required  by  the  legislation  of  the 
States  for  the  validity  of  the  documents  establishing  the  credits,  shall 
also  be  taken  -into  consideration  to  decide  upon  the  existence  of  said 
credits. 

12  1  1).  ART.  1190.  Judgment  having  been  rendered,  it  shall  be  pub- 
lished within  twenty-four  hours,  by  means  of  an  edict  which  shall  re- 
main posted  for  five  days,  upon  the  expiration  of  which  notice  of  the 
judgment  shall  be  considered  as  served. 

1219. 

1212).  ART.  1191.  A  party  desiring  to  appeal,  must  do  so  within 
five  days,  from  the  date  of  service  of  notice  of  the  judgment. 

1213).  ART.  1  192.  If  a  credit  of  the  Nation  should  be  rejected,  or  if  in 
view  of  its  location  it'cannot  be  paid  in  full,  the'judgmentof  first  instance 

*  Arts.  957  and  958  are  ordinal  arts.  875  and  876. 


233 

must  be  submitted  for  consultation  to  the  Federal  Supreme  Court,  if  it 
should  not  be  necessary  for  it  to  go  up  on  appeal. 

1209. 

1214).  ART.  1193.  The  appeal  shall  be  allowed  or  denied  in  view  of 
the  record,  which  record  shall  be  transmitted,  in  the  first  case,  to  the 
Federal  Supreme  Court,  after  citation  of  the  parties.* 

1215).  ART.  1194.  The  cause  having  been  received  and  assigned  in 
the  Court,  the  person  hearing  it  shall  direct,  by  means  of  an  order  of 
mere  practice,  that  the  parties  be  informed  thereof ;  and  if  any  of  them 
should  request,  within  five  days  after  notice  of  the  order,  that  evidence 
be  taken  in  the  cause,  such  evidence  shall  be  received  for  a  term  which 
shall  not  exceed  twenty  days. 

1216).  ART.  1 195.  If  none  of  the  parties  should  request  that  evidence 
be  taken  in  the  cause,  the  Secretary  shall  so  report,  as  well  as  the  fact  of 
the  probatory  term  having  terminated,  in  the  case  of  the  preceding 
article ;  and  the  Justice  taking  cognizance  of  the  proceedings  shall  issue 
a  rule  ordering  the  citation  of  the  parties  for  judgment,  and  fixing  one  of 
the  five  days  following  for  a  hearing  of  the  parties  in  the  court  room, 
where  such  parties  may  argue  verbally,  or  present  their  arguments  in 
writing. 

1217).  ART.  1 196.  Within  twenty  days  following  the  last  of  the  argu- 
ments, the  Court  shall  render  judgment,  and  for  the  purpose  of  its  notifi- 
cation and  execution  the  return  of  the  record  to  the  lower  court  shall  be 
ordered. 

333,  334- 

1218).  ART.  1197.  In  the  decision  at  second  instance,  the  justice  and 
legality  of  that  rendered  at  first  instance  shall  be  examined,  with  regard 
to  the  right  and  graduation  of  each  and  every  one  of  the  creditors. 

1219).  ART.  1 1 98.  In  these  proceedings  there  are  no  personal  notifica- 
tions or  citations,  with  the  exception  of  those  prescribed  in  the  fourth 
paragraph  of  article  1132.  All  rulings  and  decisions  shall  be  made  known 
by  means  of  edicts,  which  shall  remain  posted  for  a  term  of  forty-eight 
hours,  upon  the  expiration  of  which  the  respective  notification  shall  be 
understood  as  made.  The  final  judgment  is  excepted,  with  regard  to 
the  publication  of  which  the  provisions  of  article  1190  govern. 

In  the  edicts  the  day  and  the  hour  they  are  posted  and  removed  shall 
be  stated. f 

199. 

*  When  the  Nation  is  interested. 

f  Arts.  1132  and  1190  cited  are  ordinal  articles  1153  and  1211. 


234 

i22o).  ART.  1 199.  To  an  absent  debtor  who,  being  summoned  in  legal 
form,  should  not  enter  an  appearance  either  in  person  or  through  an 
attorney  in  fact,  the  Judge  shall  appoint  counsel  to  represent  him  in  the 
proceedings. 

1221).  ART.  1200.  All  incidental  issues  brought  up  in  these  proceed- 
ings shall  be  conducted  in  a  separate  record,  the  petition  instituting  it 
being  referred  to  the  parties,  for  a  period  of  six  days,  within  which  said 
parties  may  present  their  arguments,  and  upon  the  expiration  of  such 
term,  the  Judge  or  the  Court  shall  render  judgment  within  the  next 
three  days. 

584- 

1222).  ART.  1 26 1 .  An  appeal  shall  be  allowed  from  the  interlocutory 
judgments  rendered  in  these  proceedings,  from  which  an  appeal  lies  in 
accordance  with  the  general  rules,  provided  that  such  appeal  be  inter- 
posed within  forty-eight  hours  after  service  of  notice  of  the  judgment. 

783,  784,  785,  787- 

1223).  ART.  1202.  When  the  appeal  from  an  interlocutory  judgment 
is  granted,  only  the  record  in  which  the  decision  appealed  from  shall  have 
been  rendered  shall  be  forwarded  to  the  higher  court  unless  such  court 
should  deem  it  necessary  to  have  other  papers  before  it  in  order  to  render 
judgment;  and  the  bankruptcy  proceedings  shall  be  continued  to  be 
heard  in  the  first  instance,  provided  that  the  judgment  appealed  from 
does  not  affect  the  main  issue. 

1224).  ART.  1203.  Whenever  proceedings  are  being  had  in  another 
court  against  the  property,  rights  and  actions  of  the  bankrupt  debtor, 
the  proper  letters  rogatory  shall  be  issued  in  order  that  the  cause  may  be 
transmitted  to  the  Judge  of  the  bankruptcy  proceedings. 

638,  subdivision  3. 

1 225).  ART.  1 204.  The  petitions  and  proofs  of  each  of  the  creditors,  as 
well  as  the  incidental  issues  instituted,  shall  be  conducted  in  separate 
sets  of  records,  paginated  and  under  a  superscription  specif  ying  their  con- 
tents. 

1226).  ART.  1205.,  The  creditor  or  creditors  who  shall  appear  in  the 
bankruptcy  proceedings  after  the  termination  of  the  term  for  which  they 
were  called,  shall  be  admitted  to  the  proceedings,  without  putting  back 
the  status  of  the  latter. 

1227).  ART.  1206.  In  the  event  of  the  bankruptcy  of  a  merchant,  he 
shall  be  qualified  in  accordance  with  the  respective  Code. 

1 147,  subdivision  3,  1 148. 


235 

1228).  ART.  1207.  In  all  cases  of  fraudulent  or  culpable  bankruptcy, 
to  which  a  penalty  is  affixed,  the  guilty  persons  shall  be  proceeded 
against  in  a  separate  criminal  action,  ex  proprio  motu,  or  on  the  petition 
of  any  of  the  creditors  or  of  the  syndics. 

1149. 

1229).  ART.  1208.  As  soon  as  the  definitive  judgment  shall  become 
final  and  duly  recorded,  the  Judge  shall  make  the  following  orders,  which 
shall  terminate  the  bankruptcy  proceedings  : 

1.  The  appraisal,  by  experts,  of  the  judicial  costs. 

2.  The  raising  of  the  attachment  and  the  delivery,  in  a  proper  case,  of 
the  property  claimed  in  an  action  of  ownership,  which  may  not  have  been 
declared  to  belong  to  the  bankruptcy  assets,  with  its  fruits  and  appurte- 
nances. 

3.  The  advertisement  and  public  sale  of  the  property  which  may  have 
been  declared  to  belong  to  the  bankruptcy  assets  or  to  the  mass  (masa). 

4.  The  liquidation  of  the  bankruptcy,  as  soon  as  all  the  property  shall 
have  been  sold  ;  this  liquidation  shall  be  an  account  in  which  shall  figure, 
on  one  side,  the  existing  funds,  and  on  the  other,  the  debts  which  are  to 
be  satisfied  therewith,  according  to  the  order  established  in  the  judgment. 

5.  The  designation  of  a  brief  period  within  which  the  syndic  is  to  pre- 
pare said  liquidation. 

6.  The  approval  of  the  liquidation,  after  the  proper  incidental  issue,  in 
accordance  with  article  1200.* 

7.  The  issue  of  the  respective  orders  of  payment  in  favor  of  each  of  the 
creditors,  drawn  on  the  syndics,  and 

8.  The  cancellation  of  the  public  instruments,  which  have  become 
ineffective  by  reason  of  the  proceedings  had  and  the  conclusions  reached 
in  these  proceedings. 

1230).  ART.  1209.  Upon  the  liquidation  of  the  bankruptcy  being 
concluded,  the  syndics  shall  render  an  account  of  their  administration, 
and  in  order  to  approve  it  the  Judge  shall  hear  and  determine  the  inci- 
dental issue  in  accordance  with  article  i2Oo.f 

1231).  ART.  1  2  10.  When  the  syndics  or  any  of  them  should  cease  in 
this  office  before  the  liquidation  of  the  bankruptcy,  they  shall  likewise 
render  their  accounts  within  a  brief  period,  and  the  approval  thereof 
shall  be  given  as  prescribed  in  the  preceding  article. 

1232).  ART.  121  1.  If  the  depositaries  or  the  syndics  should  not  com- 
ply with  their  duty  of  rendering  their  accounts  within  the  time  in  which 
they  are  required  to  do  so,  any  of  the  creditors  has  the  right  to  demand 
the  indeminty  of  the  loss  and  damage  in  favor  of  the  bankruptcy  estate. 


*  Art.  1  200  cited  is  ordinal  art.  1221. 
f  Art.  1  200  cited,  is  ordinal  art.  1221. 


236 

1233)-  ART.  1 2 12.  When  one  or  more  of  the  mortgage  creditors 
should  request  that  special  bankruptcy  proceedings  be  instituted  against 
a  mortgaged  estate,  the  Judge  shall  grant  this  petition,  observing  the 
provisions  of  this  Chapter  which  may  be  applicable  thereto  in  the 
decision  thereon. 

1234).  ART.  1213.  If  there  should  be  in  the  bankruptcy  creditors  of 
the  first  class,  according  to  the  substantive  laws,  the  mortgage  creditors 
shall  not  be  paid  with  the  mortgaged  estates  nor  with  the  product  of  the 
latter,  unless  they  shall  consign  or  give  bond  in  a  reasonable  amount  for 
the  payment  of  the  credits  of  the  first  class,  in  that  part  which  might 
fall  to  that  which  the  mortgage  creditors  may  receive  on  account  of 
their  credits,  and  to  return  to  the  bankruptcy  assets  what  may  remain 
over,  after  their  claims  shall  have  been  covered. 

2494,  2495,  2496,  2498,  2500,  2501,  of  the  Civil  Code. 

1235).  ART.  1214.  When  in  bankruptcy  proceedings  one  or  more  of 
the  creditors  of  the  common  debtor  shall  sell  at  auction  some  of  the 
property  of  the  latter,  as  privileged  creditors,  and  in  the  decree  of  gradu- 
ation they  should  not  be  granted  the  preference,  they  must  return  to 
the  mass,  not  only  the  amount  for  which  they  sold  the  property,  but 
also  the  interest  on  said  sums,  computed  at  the  rate  of  six  per  cent  per 
annum,  from  the  day  delivery  of  said  property  was  made  to  them, 
until  they  return  the  principal  to  the  mass. 

The  rule  established  in  this  article  is  applicable  both  to  a  case  in  which 
the  amount  for  which  the  creditor  or  creditors  made  the  sale  is  equal  to 
their  respective  credits,  as  to  a  case  in  which  the  amount  of  the  sale  is 
greater  or  less  than  the  credits  of  the  vendors. 

1057- 

THIRTY-SIXTH  AMENDMENT. 
(Of  Law  46  0/1876.) 

1236).  ART.  1215.  The  National  tribunals  in  bankruptcy  proceedings 
the  cognizance  of  which  may  pertain  to  them  shall  classify  the  credits  of 
the  creditors  in  so  far  as  they  bear  no  relation  to  the  Fisc,  applying  the 
substantive  legislation  in  force  in  the  respective  State  at  the  time  of  the 
acquisition  of  the  credit. 

1209.  1210. 


237 


CHAPTER  III. 
Proceedings  relative  to  successions  mortis  causa. 

FIRST  SECTION. 
Opening  and  publication  of  testaments. 

1237).  ART.  1216.  The  Judge  of  competent  jurisdiction  to  decree  the 
opening  and  publication  of  a  testament,  is  the  one  of  First  instance  of 
the  place  of  the  last  domicile  of  the  testator,  without  prejudice  to  the 
use  of  the  legal  exceptions,  and  reserving  always  special  provisions. 

Subrogated  by  the  following: 

1238).  ART.  44  of  Law  100  of  1892.  The  Judge  of  competent  juris- 
diction to  decree  the  opening  or  publication  of  a  testament,  is  the  Judge 
of  the  Circuit  in  which  the  testator  had  his  last  domicile,  and  the  pro- 
ceedings may  be  delegated  to  the  Judge  of  the  Circuit  in  which  it  was 
executed. 

1239).  ART.  1217.  Upon  the  presentation  to  a  Judge  of  a  testament 
for  its  opening  or  publication,  with  the  legal  proof  establishing  the 
death  of  the  testator,  he  shall  set  a  day  and  hour  for  the  opening  or 
publication,  and  shall  in  the  same  rule  order  the  summoning  of  the  wit- 
nesses and  of  the  Notary,  in  a  proper  case,  to  secure  which  appearance 
the  Judge  may  avail  himself,  in  a  necessary  case,  of  the  same  compul- 
sory process  used  to  secure  the  appearance  of  witnesses  in  a  suit. 

1257,  1258,  460. 

1 240) .  ART.  1218.  Upon  the  arrival  of  the  hour  set,  the  Judge  accom- 
panied by  his  Secretary  and  the  interested  persons  who  may  have  at- 
tended, shall  proceed  to  examine  the  witnesses  and  the  Notary,  and 
publish  and  open  the  testament,  all  in  accordance  with  the  provision 
for  such  acts  contained  in  the  substantive  laws  of  the  Nation;  the 
recording  shall  then  be  ordered  of  the  testament  as  well  as  of  all  the 
proceedings  had  in  connection  with  its  opening  and  publication. 

1259,  1260. 

The  following  article  is  supplemental : 

1241).  ART.  45  of  Law  100  of  1892.  The  depositions  of  the  witnesses 
who  may  have  to  be  examined  in  the  proceedngs  for  the  opening  or 
publication  of  a  testament  shall  be  taken  separately. 

1242).  ART.  1219.  If  several  testaments  of  the  same  person  should  be 
presented,  all  shall  be  opened. 

1243).  ART.  1220.  If  any  one  should  oppose  the  opening  or  publica- 
tion of  a  testament,  by  objecting  to  the  jurisdiction  of  the  Judge,  by 


affirming  the  existence  of  the  testator,  or  pleading  some  other  ground, 
the  written  objection  shall  be  referred,  together  with  the  full  proof  which 
must  have  been  attached  thereto  of  the  act  upon  which  it  is  based,  to 
the  person  who  may  have  presented  the  testament,  who  must  make 
answer  within  forty-eight  hours;  upon  answer  having  been  made,  the 
Judge,  eo  instanti,  shall  decide  whether  or  not  the  act  of  opening  and 
publication  shall  take  place. 

1244).  ART.  1 22 1.  If  a  decision  in  the  affirmative  should  be  appealed 
from,  the  appeal  shall  be  granted  in  a  devolutive  effect  only. 

Amended  by  the  following  article: 

1245).  ART.  46  of  Law  100  of  1892.  An  appeal  in  the  case  of  article 
1 22 1  of  the  Judicial  Code  shall  be  granted  in  a  suspensive  effect.* 

1246).  ART.  1222.  The  decision  rendered  in  accordance  with  the  pre- 
ceding articles,  is  not  an  obstacle  to  the  question  of  the  validity  of  the 
testament  being  made  the  subject  of  an  ordinary  action. f 

1247).  ART.  1223.  Any  person  who  may  have  in  his  possession  an 
open  or  closed  testament,  the  former  executed  without  the  attendance 
of  a  Notary,  is  obliged  to  present- it  to  the  Judge  of  competent  jurisdic- 
tion, as  soon  as  he  shall  know  of  the  death  of  the  testator,  in  order  that 
it  may  be  opened  or  published,  and  in  either  case,  in  order  that  it  may 
be  filed  in  the  protocol. 

1248).  ART.  1224.  Any  person  interested  in  a  testate  succession,  the 
testament  of  which  another  person  has  in  his  possession,  has  the  right  to 
demand  that  the  latter  produce  it  before  the  Judge  of  competent  juris- 
diction, being  obliged  to  attach  to  his  petition,  which  must  be  in  writing, 
the  legal  proof  of  the  death  of  the  testator,  and,  if  possible,  the  summary 
proof  of  the  testament  being  in  the  possession  of  the  person  of  whom  it 
is  demanded. 

1247,  1252  to  1255. 

1249).  ART.  1225.  If  to  the  petition  for  production  there  should  be 
attached  the  summary  proof  referred  to  in  the  last  part  of  the  preceding 
article,  the  Judge  shall  immediately  order  the  production  of  the  testa- 
ment, within  a  reasonable  term  fixed  by  him,  warning  the  person  who 
holds  it  that  if  he  shall  fail  to  produce  it,  he  shall  become  unworthy  by 
such  act  from  succeeding  the  deceased,  either  as  heir  or  as  legatee;  and 
that  he  will  be  required  to  pay,  in  addition,  the  damages  caused  by  the 
improper  retention  of  the  testament. 

1 250).  ART.  1 226.  If  upon  the  expiration  of  the  term  treated  of  in  the 

*  This  article  is  not  believed  to  have  been  subrogated  by  article  1 244  of  order 
because  from  the  tenor  of  this  article  it  may  be  inferred  that  a  decision  in  tin  m -^.\\  i\  r 
may  be  appealed  from  in  a  suspensive  effect 

f  The  preceding  articles  referred  to  herein,  are  ordinal  ;ut Idea  i  243  and  12.4. |. 


239 

preceding  article,  which  can  be  extended  only  for  a  legitimate  cause 
pleaded  before  its  termination,  the  testament  should  not  have  been  pro- 
duced, the  Judge  shall  declare  the  person  withholding  it  to  have  incurred 
the  penalty  decreed. 

1251).  ART.  1227.  Decrees  issued  by  virtue  of  the  provisions  of  the 
two  preceding  articles,  may  be  appealed  f rom  in  a  devolutive  effect  only, 
and  they  are  not  an  obstacle  to  the  question  of  the  existence  of  the  testa- 
ment in  the  possession  of  such  or  such  a  person  being  made  the  subject 
of  an  ordinary  action. 

1253- 

1252).  ART.  1228.  If  to  the  petition  for  production  there  shall  not 
have  been  attached  the  summary  proof  establishing  the  retention  of  the 
testament  by  the  defendant,  the  petition  shall  be  referred  to  the  latter 
for  twenty-four  hours,  in  order  that  he  may  state  whether  or  not  he 

has  the  testament  in  his  possession. 

« 

1248. 

1253).  ART.  1229.  If  the  defendant  should  reply  that  he  does  not 
have  the  testament,  the  petition  for  the  production  thereof  shall  be  filed, 
without  prejudice  to  the  institution  of  an  ordinary  action  in  order  to 
endeavor  to  obtain  it. 

1251. 

1 254) .  ART.  1 230.  If  the  defendant  should  reply  that  he  has  the  testa- 
ment and  should  not  produce  it,  he  must  state  in  his  answer  the  reasons 
which  he  may  have  to  oppose  the  opening  or  publication  of  the  testament 
accompanying  the  summary  proof  upon  which  he  bases  his  opposition, 
which  shall  be  heard  and  decided  as  prescribed  in  article  1220.* 

1255).  ART.  1231.  The  decision  of  the  Judge  in  this  case,  directing 
the  production  of  the  testament,  may  be  appealed  from  in  a  devolutive 
effect  only. 

1256).  ART.  1232.  Upon  the  closed  testament  having  been  opened, 
it  shall  be  placed  in  the  protocol  of  the  Notary  who  authenticated  its 
execution ;  and  the  open  testament,  after  having  been  published  shall 
be  placed  in  the  Notarial  office  of  the  district  in  which  it  may  have  been 
executed. 

1257).  ART.  1233.  A  testament  having  been  presented  for  its  opening 
or  publication,  the  Secretary  of  the  Court  shall  make  a  note  at  the  foot 
of  the  instrument  presenting  it,  stating  the  condition  in  which  the  testa  - 

*  Art.  1220  referred  to  herein,  is  ordinal  article  1243. 


240 

ment  may  be,  and  it  shall  be  rubricated  by  the  Judge,  his  Secretary  and 
the  person  who  presented  it.* 

1258).  ART.  1234.  The  act  for  the  opening  and  publication  of  the 
testament  shall  take  place  the  same  day  of  its  presentation,  or  not  later 
than  the  following  day. 

1259).  ART.  1235.  If  the  Notary  or  any  of  the  witnesses  should  not 
acknowledge  his  signature,  or  should  deny  some  other  points  which  are 
the  subject-matter  of  the  interrogatory,  the  publication  of  the  testament 
shall  not  be  made  without  a  previous  ordinary  action,  which  any  of  the 
persons  interested  in  the  succession  may  institute,  the  purpose  of 
which  shall  be  to  pass  upon  the  question  of  the  validity  of  the  testament. 

1240,  1241. 

1260).  ART.  1236.  The  identification  of  the  dead  or  absent  testa- 
mentary witnesses  shall  be  made  by  proving :  i .  That  the  witnesses 
were  present  at  the  place  and  time  the  testament  was  executed,  and  2. 
That  the  signatures  are  the  same  that  the  witnesses  ordinarily  used. 
When  it  shall  be  necessary  to  identify  the  signatures  of  the  testator  or 
of  the  Notary,  it  shall  be  done  by  establishing  by  the  statement  of  wit- 
nesses, that  said  signatures  are  those  of  the  persons  they  express  ac- 
cording to  the  knowledge  that  said  witnesses  have  thereof. 

SECTION  SECOND. 

Judicial  measures  to  prevent  the  misplacement  or  the  loss  of  hereditary 

property. 

1261).  ART.  1237.  As  soon  as  a  national  Judge  of  first  instance  shall 
have  notice  by  the  denunciation  of  the  respective  agent  of  the  Depart- 
ment of  Public  Prosecution  (Ministerio  Publico}  that  a  person  has  died 
without  leaving  an  executor,  spouse  or  heirs,  and  that  in  this  succession 
the  Nation  is  interested  as  heir,  legatee  or  creditor,  he  shall  proceed  to 
the  place  where  the  death  took  place,  and  after  convincing  himself  of 
this  fact  by  the  statements  of  those  who  lived  with  the  deceased,  of  his 
neighbors  or  of  other  persons,  he  shall  proceed  to  take  the  following 
steps  :f 

i .  He  shall  examine  the  papers  of  the  deceased  to  ascertain  whether 
he  has  left  a  testament  or  intestate  heirs. 

*  Art.  1053  °f  the  Judicial  Code  of  Cundinamarca,  which  is  similar  hereto,  and 
which  was  without  doubt  considered  in  writing  the  articles  we  comment  on,  clearly 
provides  that  the  testament  presented  be  rubricated,  and  not  the  note  which  may 
have  been  written.  In  our  opinion  this  is  what  should  be  done.  (Anyirifa.) 

f  At  the  present  time  the  measures  mentioned  must  be  taken,  even  though  tin- 
Nation  have  no  interest  whatsoever  in  the  succession.  (Angarita.} 


241 

2.  If  no  testament  should  be  found  in  the  examination,  the  Judge 
shall  order  that  the  Notary  or  Notaries  of  the  respective  Department  or 
Circuit  certify  whether  the  person  whose  succession  is  in  question  exe- 
cuted a  testament  before  any  of  them. 

3.  He  shall  examine  the  relatives  and  friends  of  the  deceased  for  the 
same  purpose  of  discovering  whether  the  said  person  executed  a  testa- 
ment or  not,  and  whether  he  left  heirs. 

4.  With  the  same  end  in  view,  the  physician,  confessor  and  the  atten- 
dants of  the  person  whose  succession  is  in   question  shall  also  be  ex- 
amined. 

5.  He  shall  keep  under  lock  and  key,  and  seals  the  doors,  of  the  furni- 
ture and  papers  of  the  succession,  with  the  exception  of  the  furniture  of 
domestic  and  quotidian  use,  when  the  deceased  shall  have  lived  with 
other  persons. 

6.  He  shall  make  a  list  of  the  last  named  furniture,  which  shall  be 
signed  by  the  persons  in  whose  possession  it  may  be. 

7.  He  shall  issue  the  letters  rogatory  necessary  in  order  that  similar 
measures  may  be  taken  with  regard  to  the  property  of  the  succession 
which  is  known  to  exist  in  other  Districts ;  and 

8.  He  shall  place  a  guard,  if  he  believes  it  necessary,  for  the  custody 
of  the  property  of  the  succession. 

Law  170  of  1896,  article  15,  subdivisions  10  and  n. 

The  following  article  is  supplementary  and  amendatory : 
1262).  ART.  247  of  Law  105  of  1890.  The  Judges  of  Circuits  and 
municipal  districts  shall  carry  out,  the  provisions  of  article  1237  of  the 
Judicial  Code  when  the  matters  referred  to  in  the  said  article  shall  in 
any  manner  come  to  their  notice,  without  it  being  necessary  that  a  de- 
nunciation by  the  Agents  of  the  Department  of  Public  Prosecution  be 
first  made.* 

1263).  ART.  1238.  If  the  deceased  should  be  a  foreigner,  the  Judge 
shall  cite  the  Consul  of  the  Nation  of  such  foreigner  if  there  be  one  in 
the  place  where  the  measures  referred  to  are  to  be  taken,  in  order  that 
he  may  be  present  thereat,  if  he  so  desires ;  but  the  non-attendance  of 
the  Consul  shall  not  prevent  the  execution  of  the  measures. 

1266. 

1264).  ART,  1239.  After  the  measures  referred  to  in  the  preceding 
articles  shall  have  been  carried  out,  the  Judge,  after  a  hearing  of  the 
respective  Agent  of  the  Department  of  Public  Prosecution,  who  must 
make  answer  within  twenty-four  hours,  shall  issue  a  decree  within  the 
next  three  days,  declaring  the  inheritance  vacant,  if  no  testament  should 
have  appeared  nor  any  heirs  discovered. 

*  Article  1237  herein  cited,  is  ordinal  article  1261. 


242 

But  if  before  this,  at  any  stage  of  the  proceedings,  an  heir  should 
appear  establishing  that  he  is  such,  or  an  executor  to  whom  the  testator 
may  have  conferred  the  seizin  of  the  property  of  the  inheritance,  such 
property  shall  be  turned  over  to  him  at  his  request,  the  proceedings 
being  suspended  ex  proprio  motu* 

1265).  ART.  1240.  The  decree  declaring  the  inheritance  vacant,  shall 
contain,  furthermore. 

1 .  The  appointment  of  a  curator  to  the  inheritance. 

2.  An  order  directing  the  posting  of  edicts,  calling  those  who  believe 
themselves  to  have  an  interest  in  the  succession. 

1269. 

3.  An  order  that  there  be  presented  to  the  said  Judge  the  testament 
or  testaments  which  the  deceased  may  have  left. 

4.  An  order  for  the  citation  of  the  executor  so  that  he  may  accept  or 
renounce  the  trust  when  there  is  known  to  be  one,  in  the  place  of  his 
residence;  and 

5.  An  order  that  in  one  of  the  newspapers  of  the  place,  if  there  be 
any,  and  especially  in  that  having  an  official  character,  the  said  decree 
be  inserted  for  three  consecutive  times. 

1266).  ART.  1241.  If  the  succession  should  be  that  of  a  foreigner,  the 
Judge  shall  appoint  as  curator  to  the  inheritance  the  person  that  the 
Consul  of  the  Nation  to  which  the  deceased  belonged  may  indicate,  if 
such  person  should  be  suitable  and  responsible,  in  the  opinion  of  the 
Judge. 

1263. 

1267).  ART.  1242.  As  soon  as  the  curator  shall  have  been  sworn  into 
office,  all  the  property  and  papers  of  the  succession  shall  be  turned  over 
to  him  under  a  judicial  inventory,  for  which  purpose  the  Judge  shall 
issue  the  proper  communications  to  the  Judges  who  may  have  taken 
part  therein  up  to  that  time. 

1268).  ART.  1243.  The  curator  shall  defray  the  expenses  necessary 
for  the  custody  and  preservation  of  the  property  of  the  succession. 

1269).  ART.  1244.  The  summoning  edicts  shall  be  posted  in  the  place 
where  the  proceedings  are  being  held,  where  the  death  occurred,  and  in 
the  last  domicile  of  the  person  whose  succession  is  in  question,  and  for 
the  term  which  the  Judge  shall  fix,  which  cannot  be  under  thirty  days, 
nor  more  than  one  year. 

1265,  subdivision  2. 

1270).  ART.  1245.  The  decree  declaring  an  inheritance  to  be  vacant 
*  The  preceding  articles,  referred  to  herein,  are  ordinal  articles  1261  and  1263. 


243 

and  those  consequent  thereupon,  can  be  appealed  from  in  a  devolutive 
effect  only,  and  the  appeal  shall  be  heard  and  decided  as  an  appeal  from 
interlocutory  decrees. 

783  et  seq. 

SECTION  THIRD. 
Petition  of  Inheritance. 

1271).  ART.  1246.  Any  person  believing  himself  entitled  to  the  prop- 
erty of  a  vacant  inheritance,  must  appear  to  avail  himself  of  his  rights 
before  the  Judge  who  may  have  made  such  declaration,  within  the 
term  which  may  have  been  fixed  in  the  edicts. 

1264,  1269,  1272  to  1279,  1284. 

1272).  ART.  1247.  The  petitioner  must  attach  to  his  petition  the  evi- 
dence of  his  right,  if  it  should  not  appear  on  the  face  of  the  record. 

1273).  ART.  1248.  Said  petition  shall  be  referred  to  the  Agent  of  the 
Department  of  Public  Prosecution  who  may  have  taken  part  in  the 
opening  of  the  succession,  who  must  make  answer  thereto  within  three 
days. 

1274).  ART.  1249.  After  the  Agent  of  the  Department  of  Public  Prose- 
cution shall  have  been  heard,  if  the  proof  upon  which  the  petitioner 
bases  his  right  should  be  complete,  the.  Judge  shall  declare  the  petitioner 
to  be  the  heir,  and  shall  order  that  the  property  and  papers  of  the  suc- 
cession be  delivered  to  him,  without  prejudice  to  third  persons. 

1284. 

1275).  ART.  1250.  If  the  petitioner  should  fail  to  attach  to  his  peti- 
tion the  proof  referred  to,  the  petition  shall  be  reserved  for  action  after 
the  expiration  of  the  term  of  the  edicts. 

1269. 

1276).  ART.  1251.  Upon  the  expiration  of  this  term,  an  ordinary 
action  shall  be  instituted  with  the  Agent  of  the  Department  of  Public 
Prosecution. 

1277).  ART.  1252.  If  during  the  term  of  the  edicts  two  or  more  per- 
sons should  appear,  each  of  them  claiming  a  right  to  the  entire  succession, 
to  the  exclusion  of  the  others,  whether  they  shall  have  transmitted  proofs 
or  not,  all  the  petitions  made  shall  be  reserved  until  the  conclusion  of  the 
term  referred  to. 

1278).  ART.  1253.  Upon  the  termination  of  the  term  of  the  edicts,  in 
the  case  of  the  preceding  article,  the  Judge  shall  order  that  each  of  the 
petitions  be  referred  to  each  of  the  petitioners,  reciprocally,  for  a  single 


244 

term,  and  without  the  records  being  removed  from  the  office  of  the 
Secretary. 

1279).  ART.  1254.  Whether  answer  be  made  or  not,  an  ordinary  action 
shall  be  prosecuted  to  its  conclusion,  the  Agent  of  the  Department 
of  Public  Prosecution  being  always  considered  a  party. 

1271. 

1280).  ART.  1255.  In  any  other  case  in  which  an  action  by  petition 
of  inheritance  is  instituted,  it  shall  be  exercised  according  to  the  pro- 
cedure of  ordinary  action,  without  any  special  proceedings. 

1281,  1284. 

1 281).  ART.  1 256.  Notwithstanding  the  preceding  provisions,  he  who, 
within  one  year  of  the  death  of  a  person,  should  establish  his  right  to  an 
inheritance  occupied  by  another,  shall  have  the  summary  action  men- 
tioned in  the  following  article,  for  the  adjudication  of  the  inheri- 
tance to  him,  and  for  the  restitution  to  him  of  the  hereditary  things 
of  all  kinds,  and  even  of  those  of  which  the  deceased  was  the  mere  holder, 
as  pledgee,  bailee,  lessee,  etc.,  and  which  shall  not  have  returned 
legitimately  to  their  owners. 

1284. 

1282).  ART.  1257.  The  person  claiming  the  inheritance,  or  a  part  of  itf 
in  the  case  of  the  preceding  article,  shall  appear  before  the  Judge  with 
the  necessary  evidence,  and  the  latter  shall  order  that  a  copy  of  the 
petition  be  served  upon  the  alleged  detainer  of  the  inheritance,  or  of  the 
part  thereof  sued  for,  admonishing  him  to  make  answer  thereto  within 
five  days,  and,  within  such  time,  to  present  the  proof  of  his  right  to  the 
posseSvSion  of  the  hereditary  property. 

Upon  the  expiration  of  the  term  to  make  answer  to  the  petition,  the 
Judge,  without  further  proceedings  shall,  within  three  days,  order  the 
inheritance  or  the  part  thereof  claimed,  to  be  delivered  to  the  heir,  if  the 
defendant  should  have  failed  to  present  a  legal  title  for  his  possession.  A 
devolutive  appeal  only  lies  from  this  decision,  and  it  is  not  an  obstacle 
to  each  of  the  parties  availing  himself  of  his  rights  in  an  ordinary  action. 

1 283) .  ART.  1258.  The  summary  proof  which  the  plaintiff  must  accom- 
pany in  the  said  case  of  petition  of  inheritance  or  part  thereof  shall  relate 
to  positive  acts,  from  which  the  Judge  can  deduce  the  right  under  which 
the  action  is  brought,  and  the  possession  of  what  is  claimed  shall  be 
granted  pro  indimso,  if  the  petitioner  should  not  be  the  only  heir. 

1282. 


245 

The  following  article  is  supplemental : 

1284).  ART.  248  of  Law  105  of  1890.  Any  person  believing  that  he 
has  a  right  to  the  inheritance,  whether  it  shall  have  been  declared  vacant 
or  not,  may  enforce  it  summarily  before  the  respective  Circuit  Judge. 
The  petitioner  must  present  the  proof  of  the  death  of  the  person  whose 
heir  he  claims  to  be,  and  the  proof  upon  which  he  bases  his  claims.  The 
Judge,  after  having  heard  the  opinion  of  the  agent  of  the  Department 
of  Public  Prosecution,  shall  make  the  declaration  of  heirship,  withou 
prejudice  to  third  parties  if  the  documents  presented  should  prove  that 
he  is  such  heir. 

In  intestate  successions,  deferred  under  the  operation  of  prior  laws, 
in  no  case  shall  individuals  other  than  those  to  whom  the  inheritance 
would  have  been  deferred  under  said  laws  be  recognized  as  heirs ;  this  is 
not  contrary  to  the  actions  for  amendment  in  testamentary  successions. 

1299. 

1285).  ART.  1259.  Suits  instituted  for  the  purpose  of  securing  the  pay- 
ment of  testamentary  or  hereditary  debts,  shall  be  heard  in  separate 
proceedings,  unless  bankruptcy  proceedings  should  lie,  in  accordance 
with  the  provisions  of  Chapter  2,  Title  XI  of  this  Book. 

1304.     1321  to  1326  of  the  Civil  Code. 

SECTION  FOURTH. 
Inventories  and  Appraisements. 

1286).  ART.  1260.  When  any  person  who,  in  accordance  with  the 
substantive  civil  laws  has  the  right  to  request  the  making  of  an  inventory, 
should  desire  to  exercise  this  right,  he  shall  apply  to  the  Judge  of  com- 
petent jurisdiction,  according  to  article  1216,  requesting  that  said 
official  prepare  the  inventory  if  it  is  to  be  a  judicial  one,  or  that  he  grant 
permission  for  it  to  be  made,  if  it  is  to  be  an  extrajudicial  one.  The  per- 
son making  this  petition  must  attach  to  his  petition  the  proof  of  who  are 
the  heirs  or  their  representatives. 

The  inventory  shall  be  a  judicial  one  when  among  the  heirs  there 
should  be  one  or  more  absent,  or  under  twenty-one  years  of  age,  or  per- 
sons under  interdiction,  in  accordance  with  the  substantive  laws. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  two  following : 

1287).  ART.  249  of  Law  105  of  1890.  Any  person  having  the  right 
to  demand  the  preparation  of  inventories,  and  desirous  of  exercising  it, 
shall  appear  before  the  Circuit  or  District  Judge  of  competent  jurisdic- 
tion to  take  cognizance  of  the  succession  proceedings,  and  shall  request 


246 

that  said  Judge  prepare  it,  if  the  inventory  is  to  be  a  judicial  one,  or, 
otherwise,  that  he  grant  the  petitioner  the  proper  permission  to  have  it 
made  extrajudicially.  To  said  petition  he  shall  attach  the  proof  of  who 
are  the  heirs  or  their  representatives,  and  of  the  death  of  the  persons 
whose  succession  is  involved.  This  proof  may  consist  of  the  summary 
testimony  of  competent  witnesses. 

1238,  1311. 

1288).  ART.  250  of  Law  105  of  1890.  In  succession  proceedings  a 
judicial  inventory  shall  be  made  when  there  shall  be  one  or  more  of  the 
heirs  absent  and  having  no  representatives,  when  they  may  be  under 
twenty-one  years  of  age,  or  when  they  are  under  judicial  interdiction. 

1289).  ART.  1261.  In  any  case,  the  judge  shall  decree  the  formation 
of  the  judicial  inventory  or  shall  grant  permission  for  an  extrajudicial 
one  to  be  made,  with  the  citation  of  those  who  have  a  right  to  be  present 
at  this  proceeding,  according  to  the  substantive  laws.  This  citation 
shall  be  personally  served  upon  the  interested  persons  present,  by  edict 
upon  those  absent,  and  personally  upon  the  representatives  of  the  heirs 
whose  portion  of  the  inheritance  may  be  vacant  on  account  of  their  non- 
acceptance  thereof. 

1288,  212,  1303,  1307,  1310,  1313. 

The  two  articles  which  follow  are  supplemental  : 

1290).  ART.  251  of  Law  105  of  1890.  If  there  should  be  minors  with- 
out a  legal  representative  in  the  succession  proceedings  mortis  causa,  it 
shall  be  sufficient  that  there  be  assigned  them,  or  that  they  appoint,  a 
curator  ad  litem,  to  intervene  in  the  name  of  the  minors  in  all  the  pro- 
ceedings which  may  be  had. 

64. 

1291).  ART.  252  of  Law  105  of  1890.  The  extrajudicial  inventory 
shall  be  made  before  two  competent  witnesses,  appointed  by  the  heirs 
present  or  by  their  representatives,  and  by  the  Judge  of  the  cause  in 
case  of  disagreement. 


1292).  ART.  1262.  The  decree  ordering  the  formation  of  the  judicial 
inventory,  shall  set  the  day  and  the  hour  when  it  is  to  be  begun. 

1293).  ART.  1263.  Upon  the  arrival  of  the  day  and  hour  set,  the 
Judge  with  his  Secretary  and  the  persons  interested  who  may  wish  to  be 
present  at  the  act  shall  betake  themselves  to  the  place  where  the  prop- 
erty maybe  situated;  the  holder  thereof  shall  take  an  oath  to  designate 
all  the  property  of  the  inheritance  which  may  be  in  his  possession  or  of 


247 

which  he  may  have  knowledge,  and  shall  cause  the  Secretary  to  write 
down,  with  the  proper  clearness  and  detail,  the  list  of  the  property 
which  the  holder  thereof  may  enumerate,  or  of  which  the  heirs  present 
may  have  knowledge. 

1299. 

1294).  ART.  1264.  After  the  list  shall  have  been  made,  the  property 
shall  be  appraised  by  experts  appointed  by  the  heirs  or  their  representa- 
tives. 

1295).  ART.  1265.  The  number  of  these  appraisers  cannot  exceed 
three ;  and  if  the  persons  interested  should  not  agree  as  to  the  appoint- 
ment, or  if  the  appraisers  should  not  agree  as  to  the  appraisement,  the 
provisions  of  articles  655  and  659  shall  be  observed.* 

1296).  ART.  1266.  If  the  inventories  cannot  be  finished  at  a  single 
session,  each  of  the  sections  which  it  may  be  necessary  to  make  shall  be 
prepared  separately,  a  memorandum  being  made  at  the  beginning  of  the 
section  of  the  persons  who  were  present  as  interested  parties,  who  shall 
subscribe  thereto  together  with  the  Judge  and  the  Secretary. 

1 297).  ART.  1 267.  For  the  formation  of  the  judicial  inventory  of  the 
property  situated  in  places  other  than  that  where  the  succession  is 
situated,  the  Judge  shall  commission  the  Judges  of  the  said  places. 

THIRTY-SEVENTH  AMENDMENT. 
(Of  Law  46  of  1876.) 

1 298) .  ART.  1 268.  The  property  which  may  be  in  the  hands  of  a  third 
possessor  shall  be  placed  separately  in  the  inventory ;  and  the  Judge  shall 
not  order  said  property  to  be  turned  over  to  the  heirs  and  legatees  unless 
it  be  proved  that  it  belongs  to  the  inheritance  and  after  hearing  the  pos- 
sessor. If  the  latter  should  not  consent  to  the  delivery  thereof  and 
should  plead  some  reason  thereof,  the  delivery  shall  not  be  ordered  until 
a  judicial  decision  shall  so  direct. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  following. 

1299).  ART.  253  of  Law  105  of  1890.  In  the  inventories  of  the  prop- 
erty of  deceased  person  there  shall  be  stated  separately  that  which  is  in 
the  hands  of  a  third  possessor,  and  the  Judge  shall  not  order  it  turned 
over  to  the  heirs  and  legatees,  until  summary  proof  shall  be  adduced 
that  it  belongs  to  the  inheritance,  and  after  the  holder  thereof  shall  have 
been  heard.  If  the  latter  should  refuse  to  deliver  it,  pleading  sufficient 
legal  cause,  the  order  for  delivery  shall  not  be  renewed  until  the  matter 
shall  be  decided  judicially. 

*  T.he  articles  cited  are  ordinals  489  and  493. 


248 

The  private  property  of  the  surviving  spouse,  acquired  by  him  or  her 
during  the  marriage,  shall  not  be  included  in  the  inventories,  nor  shall  it 
be  subject  to  partition,  if  in  accordance  with  the  laws  in  force  at  the 
time  of  the  acquisition  of  such  property  it  became  his  exclusively. 

1284,  second  paragraph. 

1300).  ART.  1269.  Upon  the  inventory  being  concluded,  the  Judge 
shall  order  that  it  be  referred  to  all  of  the  parties  interested,  by  means 
of  an  edict  which  shall  remain  posted  for  three  days,  in  order  that  within 
the  six  days  after  its  removal  they  may  state  what  they  may  deem  ad- 
visable. 

1308,  1309,  1313. 

1301).  ART.  1270.  Upon  the  expiration  of  the  last  term,  the  Judge 
who  ordered  them  made  shall  approve  them  and  send  them  for  filing  in 
the  protocol  of  a  Notarial  office  of  the  place  where  they  were  made,  if 
they  should  conform  to  the  legal  prescriptions. 

1310,  1307,  1308,  1309,  1314,  1315,  1312. 


1302).  ART.  1271.  The  actions  which  may  be  instituted  charging  the 
concealment  or  the  improper  inclusion  of  certain  property  in  the  inven- 
tories, shall  not  prevent  the  approval  of  the  inventories,  if  they  appear 
properly  prepared,  nor  shall  they,  in  a  proper  case,  prevent  the  partition 
of  the  property  among  the  assigns  or  participants ;  but  if  property  should 
have  been  improperly  included  therein,  the  participant  or  participants 
to  whom  the  property  alleged  to  be  improperly  included  in  the  inven- 
tory may  fall,  shall  be  obliged  to  secure  under  bond,  to  the  satisfaction 
of  the  Judge,  the  return  of  such  property  if  the  inheritance  should 
be  declared  not  to  belong  to  them. 

The  proceedings  in  which  these  rights  of  action  are  exercised  shall 
be  conducted  separately  with  the  persons  interested  directly  in  the  con- 
cealment or  inclusion. 

The  twelve  articles  which  follow  are  supplementary  and  amendatory  : 
1303).  ART.  254  of  Law  105  of  1890.  The  creditors  in  succession  pro- 
ceedings have  the  right  to  attend  the  preparation  of  the  inventories  and 
appraisement  of  the  property  of  the  succession  upon  presentation  of  the 
title  of  their  credit,  or  when  the  heirs  shall  have  notice  of  the  latter  and 
should  not  object  thereto. 

In  order  that  the  partitioner  may  comply  with  the  provisions  of  art  icU 
1 393  of  the  Civil  Code,  mention  shall  be  made  in  the  inventories  of  the 
credits  charged  against  the  succession,  but  only  of  those  in  which  any  of 
the  following  circumstance^  are  attendant: 


249 

1 .  That  all  the  co-assigns  acknowledge  the  legitimacy  of  the  credit ;  or 

2.  That  the  title  presented  by  each  creditor  be  of  those  which  the  law 
requires  as  ground  for  the  issue  of  a  writ  of  execution. 

1289. 

1304).  ART.  255  of  Law  105  of  1890.  The  creditors  may  summarily 
exercise  the  action  on  the  benefit  of  separation  of  property,  if  the  title 
of  their  credit  should  carry  execution.  The  separation  having  been  re- 
quested, an  incidental  proceeding  shall  be  had  in  which  a  decision  shall 
be  rendered  in  view  of  what  may  have  been  alleged  and  proved. 

In  other  cases  the  creditors  may  have  recourse  to  the  ordinary  chan- 
nels for  the  purpose  of  obtaining  the  said  benefit. 

1305).  ART.  256  of  Law  105*  of  1890.  If  there  should  not  be  an  exe- 
cutor who  has  accepted  the  trust  and  who  has  the  seizin  of  the  property, 
and  the  heirs  should  not  agree  as  to  its  administration,  the  Judge  must 
order,  after  an  incidental  hearing,  that  the  co-assigns  appoint  on  or  be- 
fore the  third  day  a  depositary  for  the  property  of  the  succession. 
Should  they  fail  to  do  so  or  not  agree  as  to  the  appointment,  the  Judge 
shall  make  the  appointment,  shall  give  him  possession  and  shall  deliver 
to  him  the  property  upon  the  in ventory  being  made,  or  under  such  inven- 
tory if  already  made. 

In  the  case  of  this  article,  the  Judge  shall  deliver  the  property  to  the 
heirs  when  all  should  agree ;  otherwise,  he  shall  keep  it  in  deposit  until, 
after  the  partition  shall  have  been  made,  he  makes  the  order  approving 
it,  referred  to  in  article  1291  of  the  Judicial  Code.* 

1306).  ART.  257  of  Law  105  of  1890.  When  through  forgetfulness, 
inability  or  ignorance  of  the  existence  of  the  property  in  a  succession, 
some  interested  person  or  heir  requests  the  preparation  of  an  additional 
inventory,  before  or  after  the  partition  of  the  property  first  inven- 
toried, the  second  inventory  or  appraisal  of  property  shall  be  prepared 
by  the  same  Judge  of  the  cause,  with  the  observance  of  the  provisions 
governing  inventories,  whether  judicial  or  extrajudicial. 

1307).  ART.  258  of  Law  105  of  1890.  In  the  Departments  in  which 
successions  are  charged  with  taxes  in  favor  of  said  Departments  or  any 
entity  whatsoever,  it  shall  be  understood  that  the  cause  of  the  con- 
tribution is  the  fact  of  the  transmission  of  the  property  of  the  deceased 
to  the  assigns,  and,  consequently,  that  the  tax  pertains,  in  every  case, 
to  the  Department  in  which  the  succession  is  opened,  whatever  be  the 
place  in  which  the  property  may  be  situated. 

In  succession  proceedings  the  official  having  charge  of  the  collection 
of  the  tax  shall  be  a  party  to  the  proceedings  until  such  tax  is  paid.f 

Law  170  of  1896,  2,  6,  9,  14  and  15. 

*  Ordinal  article  1338. 

f  This  article  subrogates  article  21  of  Law  30  of  1888. 


250 

1308).  ART.  259  of  Law  105  of  1890.  Upon  the  conclusion  of  the  in- 
ventories and  appraisal  the  record  shall  be  forwarded  to  the  Collector,  for 
a  period  of  three  days,  in  order  that  he  may  make  the  respective  liquida- 
tion. Upon  the  latter  having  been  made,  it  shall  be  referred  to  the 
persons  interested  and  to  the  agent  of  the  Department  of  Public  Prosecu- 
tion, for  twenty-four  hours  to  each,  in  order  that  they  may  object  thereto 
in  so  far  as  it  may  appear  to  them  to  be  illegal  or  incorrect.  If  the  per- 
sons interested  and  the  agent  of  the  Department  of  Public  Prosecution 
should  accept  the  liquidation,  the  Judge  shall  approve  it;  but  if  they 
should  object  thereto,  he  shall  hear  and  determine  the  point  in  accord- 
ance with  the  procedure  established  for  interlocutory  issues  in  ordinary 
actions,  approving  the  liquidation  or  ordering  that  it  be  remade  if  there 
is  legal  cause  for  such  order.  In  the  latter  case,  after  his  decision  shall 
have  become  final,  the  record  shall  be  returned  to  the  Collector  in  order 
that  his  decision  may  be  carried  out ;  and  the  same  shall  be  done  if  the 
decision  rendered  in  the  last  instance  should  so  provide. 

1314,  1315,  1310. 

1309).  ART.  5  of  Law  113  of  1890.  In  all  succession  proceedings  in 
which  the  tax  treated  of  in  this  Law  is  to  be  collected,  the  provisions  of 
articles  21  to  29  of  Law  30  of  1888  (February  25)  shall  apply;  but  the 
liquidation  made  shall  not  be  referred  to  the  agent  of  the  Department 
of  Public  Prosecution. 

1310).  ART.  260  of  Law  105  of  1890.  The  inventories  and  appraise- 
ments of  the  property  of  a  succession  cannot  be  approved  unless  the 
payment  of  the  tax  in  the  legal  form  shall  be  established.  If  they  should 
be  approved  without  this  formality,  the  Judge  shall  be  liable  for  the  tax.* 

1307,  1308,  1309,  1312. 

1311).  ART.  261  of  Law  105  of  1890.  In  successions  mortis  causa  in 
which  inventories  are  not  prepared  within  one  year  after  the  death  of 
the  person  who  may  have  left  property  in  the  Department,  the  respec- 
tive Circuit  Judge  shall,  with  the  intervention  of  the  persons  interested, 
either  on  information  or  from  his  own  knowledge,  prepare  ex  proprio 
motu  judicial  inventories  written  on  common  paper,  for  the  sole  purpose 
of  collecting  what  may  be  due  the  revenues  of  Beneficence  or  other  reve- 
nues. 

This  provision  applies  to  successions  in  which  inventories  shall  not 
have  been  prepared  within  the  proper  time.f 

1312).  ART.  262  of  Law  105  of  1890.  The  Judge  taking  cognizance  of 
succession  proceedings  shall  issue  an  order  of  payment  by  executory 

*This  article  subrogates  article  23  of  Law  30  of  1888. 
p*  f  This  article  subrogates  article  24  of  Law  30  of  1888. 


251 

procedure  against  the  debtors  to  the  Lazareto  branch  (ramo  de 
Lazareto)  or  the  corresponding  entity — even  though  in  view  of  the 
amount  of  the  taxes  he  should  not  be  of  competent  jurisdiction  accord- 
ing to  the  general  rules — when  such  debtors  do  not  make  the  payment 
within  fifteen  days  after  the  approval  of  the  respective  liquidation.  The 
writ  of  execution  shall  issue  on  ordinary  paper  and  ex  proprio  motu,  or 
on  the  petition  of  any  official.  If  the  amount  of  the  tax  should  be 
recovered,  the  Judge  shall  immediately  forward  to  the  syndic  of  the 
institution  mentioned,  or  to  the  person  representing  the  rights  corre- 
sponding to  any  other  entity,  the  amount  he  may  have  collected. 

Law  170  of  1896,  article  15,  subdivision  6. 

1313).  ART.  263  of  Law  105  of  1890.  It  is  the  duty  of  all  Judges 
before  whom  succession  proceedings  are  instituted,  to  cite  the  Collector 
of  the  tax,  in  order  that  this  official  or  his  representative  may  take  note 
of  the  quality  of  the  assigns,  appoint  appraisers,  request  that  the  prop- 
erty of  the  succession  be  inventoried  and  appraised,  and  object  to  deci- 
sions which  may  prejudice  the  revenues.* 

1314).  ART.  264  of  Law  105  of  1890.  In  vacant  inheritances,  the 
proceedings  mentioned  in  article  259  of  this  Law  as  to  the  curator 
appointed  and  the  Agent  of  the  Department  of  Public  Prosecution,  shall 
be  had.  f 

1315).  ART.  265  of  Law  105  of  1890.  The  liquidation  can  be  objected 
to  in  the  following  cases  only : 

1.  By  reason  of  an  error  in  the  numerical  operations  or  in  the  deduc- 
tion of  the  tax. 

2.  When  the  value  of  the  hereditary  debts  legally  established  shall  not 
have  been  deducted,  as  well  as  what  may  be  due  the  surviving  spouse  by 
reason  of  private  property  and  acquest  and  gains,  in  accordance  with 
the  Civil  Code  and  the  provisions  of  this  Law ;  and 

3.  If  the  patrimony  of  the  deceased  appearing  to  be  confounded  with 
property  or  active  rights  belonging  to  previous  undivided  successions, 
or  in  which  other  persons  have  a  participation  by  virtue  of  a  partner  - 
ship,  contract  or  a  similar  cause,  the  Collector  should  not  have  con  - 
lined  himself  to  liquidating   the  tax   only  on  the  property  of  the 
estate,  provided  that  the  record  furnishes  sufficient  data  and  proof  to 
fix  the  amount  of  the  hereditary  estate.  % 

*This  article  subrogates  art.  26  of  Law  30  of  1888. 

fThis  article  subrogates  article  27  of  Law  30  of  1888.  Article  259  cited,  is  ordi- 
nal 1308. 

%  This  article  subrogates  article  29  of  Law  30  of  1888. 


252 

FIFTH  SECTION. 
Partition  of  the  Property  of  the  Succession. 

1316).  ART.  1272.  The  partition  of  the  inheritance  may  be  judicial 
or  extra  judicial. 

It  shall  be  judicial:  i.  When  one  or  more  of  the  participants  should 
be  absent  or  under  twenty-one  years  of  age,  or  persons  under  interdic- 
tion from  administering  their  property;  2.  When  all  the  participants 
agree  that  it  is  to  be  judicial;  3.  When  the  participants  do  not  agree  as 
to  the  mode  of  partition. 

In  other  cases  the  partition  shall  be  extrajudicial. 

1288,  1340,  1341.     1374^/^9.,  of  the  Civil  Code. 

1317).  ART.  1273.  The  Judge  before  whom  the  succession  may  have 
been  opened  by  means  of  the  acts  mentioned  in  the  four  preceding  sec- 
tions, is  competent  for  the  judicial  partition. 

1318).  ART.  266  of  Law  105  of  1890.  When  one  or  more  of  the  co- 
assigns  representing  more  than  one-half  of  the  divisible  mass,  should 
request  the  suspension  of  the  division  of  the  property  until  an  action 
already  instituted  shall  be  decided,  the  decision  of  which  may  affect 
more  than  one-half  of  said  mass,  the  Judge  shall  grant  the  petition 
accordingly. 

1387,  1388  of  the  Civil  Code. 

1319).  ART.  1274.  I*1  the  petition  for  a  judicial  partition  shall  be 
stated  the  name  and  the  residence  of  each  of  the  co-assigns  or  partici- 
pants, if  known,  and  the  title  of  the  heir  must  accompany  it,  if  it  should 
not  appear  from  the  record. 

1320).  ART.  .1275.  The  petition  for  partition  shall  be  referred  to  the 
participants  or  heirs  for  six  days  each,  within  which  term  any  person 
objecting  to  the  petition  must  present  the  proofs  he  may  have  therefor. 

Upon  the  expiration  of  the  term  of  the  reference,  if  no  answer  should 
have  been  made,  or  no  one  should  have  objected,  or  no  proofs  for  the 
opposition  should  have  been  presented  by  the  person  making  it,  the 
Judge  shall  decree  the  partition  requested;  but  if  there  should  be 
opposition  based  on  proof,  even  though  summary,  the  Judge  shall 
not  decree  the  partition. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  following: 

1321).  ART.  267  of  Law  105  of  1890.  The  petition  for  partition  shall 
be  referred  to  the  participants  or  heirs,  for  six  days  each,  within  which 
term  any  person  objecting  to  the  petition  must  present  the  proofs  he 
may  have  therefor. 


253 

Upon  the  expiration  of  the  term  of  the  reference,  if  no  answer  should 
have  been  made,  or  no  one  should  have  objected,  or  no  proofs  for  the 
opposition  would  have  been  presented  by  the  person  making  it,  the 
Judge  shall  decree  the  partition  requested  ;  but  if  there  should  be  opposi- 
tion based  on  proof,  even  though  summary,  the  Judge  shall  not  decree 
the  partition. 

The  Judge  shall  also  decree  the  partition  of  the  property,  without 
referring  the  petition,  in  the  event  that  it  being  requested  by  all  the 
heirs  or  participants,  there  should,  therefore,  not  be  any  one  to  whom  to 
refer  it. 

1322).  ART.  1276.  The  decree  of  partition  may  be  appealed  from  in  a 
devolutive  effect  only. 

Said  decree,  as  well  as  that  denying  the  partition,  is  not  an  obstacle 
to  the  parties  enforcing  their  rights  in  an  ordinary  action. 

1323).  ART.  1277.  The  partition  having  been  decreed,  the  Judge 
shall  in  the.  same  decree  direct  the  participants  or  heirs,  within  three 
days  after  service  of  notice,  to  appoint  a  partitioner  to  make  the  distri- 
bution and  partition  of  the  property  of  the  succession,  in  accordance 
with  the  provisions  of  the  substantive  laws. 

1318. 

1324).  ART.  1278.  If  the  heirs  should  not  agree  as  to  the  appointment 
of  a  partitioner,  or  should  fail  to  make  the  appointment  within  the  term 
fixed,  which  shall  begin  to  run  from  the  last  notification  of  the  decree 
of  partition,  the  Judge  shall  make  one  on  the  petition  of  any  of  them. 

1380  to  1383  of  the  Civil  Code. 


1325).  ART.  1279.  The  partitioner  must  be  sworn,  and  the  one  ap- 
pointed by  the  Judge  may  be  challenged  in  the  same  manner  as  any. 
expert. 

1385  of  the  Civil  Code. 

1326).  ART.  1280.  The  partitioner  shall  discharge  his  duties  within 
the  term  that  the  Judge  may  allow  him,  in  view  of  the  extent  or  amount 
of  the  inheritance,  and  said  term  shall  begin  to  run  from  the  date  of  the 
delivery  to  the  partitioner,  which  must  take  place,  of  the  testament,  the 
inventories  and  other  papers  necessary  for  the  purpose  of  effecting  the 
partition. 

1389  of  the  Civil  Code. 

1327).  ART.  1281.  Any  doubt  which  cannot  be  decided  by  the  par- 
titioner, shall  be  decided  by  the  Judge,  with  the  hearing  of  the  parties, 
the  point  being  heard  and  determined  as  an  ordinary  incidental  issue. 


254 

1328).  ART.  1282.  The  partitioner  having  prepared  the  liquidation 
and  the  partition  of  the  hereditary  property,  he  shall  submit  his  work 
to  the  Judge,  returning  the  documents  which  may  have  been  turned 
over  to  him. 

1329).  ART.  1283.  The  Judge  shall  refer  all  that  may  have  been  done 
to  the  co-assigns  or  participants,  for  such  reasonable  term  as  he  may  fix, 
in  order  that  they  may  state  whether  they  agree  to  the  partition  made 
or  not. 

1330).  ART.  1284.  If  objection  should  be  made  to  the  partition,  and 
the  objections  should  relate  to  questions  of  fact,  which  are  established 
by  the  record,  or  upon  points  of  law,  the  Judge,  after  citing  the  parties, 
shall  decide  within  three  days  whether  the  partition  should  be  re-made 
either  in  whole  or  in  part. 

1332. 

1331).  ART.  1285.  If  none  of  the  parties  should  appeal  upon  being 
notified  of  this  order,  and  if  a  new  partition  shall  have  been  decreed, 
the  Judge  shall  direct  the  partitioner  to  make  it  again  within  the  term 
which  he  may  set. 

The  same  action  shall  be  taken  in  the  event  of  the  order  directing  a 
new  partition  should  have  been  appealed  from  and  approved  by  the 
superior  court. 

1332).  ART.  1286.  The  partition  having  been  amended  in  the  terms 
mentioned,  the  Judge  shall  approve  it,  and  the  same  shall  be  done  if  all 
the  participants  should  agree  as  to  its  legality,  or  if  the  objections  made 
should  relate  to  questions  of  fact  which  are  not  borne  out  by  the  rec- 
ord. In  the  latter  case,  notwithstanding  the  approval,  the  participants 
objecting  may  institute  an  ordinary  action  for  the  purpose  of  securing 
the  nulity  and  rescission  of  the  partition,  for  the  same  causes  for  which 
contracts  are  annulled  and  rescinded. 

1740  et  seq.,  of  the  Civil  Code. 

1333).  ART.  268  of  Law  105  of  1890.  The  appeals  granted  from 
the  decisions  rendered  in  accordance  with  the  provisions  of  articles 
1284,  1285  and  1286  of  the  Judicial  Code,  shall  be  heard  and  decided 
by  the  superior  court  in  the  same  manner  as  interlocutory  decrees. 

1334).  ART.  1287.  The  fact  of  some  property  having  been  omitted,  is 
not  a  cause  for  the  rescission  of  the  partition ;  that  in  which  the  prop- 
erty may  have  been  omitted  shall  be  continued  afterwards  and  the  prop- 
erty divided  among  the  participants  in  accordance  with  their  rights. 

1 406  of  the  Civil  Code. 


255 

1335)-  ART-  I288-  The  other  participants  may  object  to  the  rescissory 
action  offering,  to  the  person  who  may  have  instituted  it  the  supple- 
ment of  his  portion  in  cash. 

1407  of  the  Civil  Code. 

1336).  ART.  1289.  An  action  for  nullity  or  rescission  cannot  be 
brought  by  the  participant  who  may  have  alienated  his  portion  in 
whole  or  in  part,  unless  there  shall  have  been  error  in  the  partition,  or 
force  or  fraud,  from  which  he  may  suffer  damage. 

1408  of  the  Civil  Code. 

1337).  ART.  1290.  The  participant  not  desirous  of ,  or  unable  to  insti- 
tute an  action  for  nullity  or  rescission,  shall  retain  the  other  legal  reme- 
dies pertaining  to  him  to  be  indemnified. 

1410  of  the  Civil  Code. 

1338).  ART.  1291.  Upon  a  partition  being  approved,  the  Judge  shall 
order : 

1.  That  it  be  filed  in  the  protocol  of  the  respective  Notary. 

2.  That  a  copy  of  the  section  relating  to  him  be  issued  to  each  of  the 
participants. 

3.  That  there  be  delivered  to  each  of  the  participants  the  property  of 
the  succession  which  may  have  fallen  to  him. 

1400  of  the  Civil  Code. 

1339).  ART.  1292.  When  it  shall  become  necessary  to  sell  something 
belonging  to  the  succession,  upon  the  sale  having  been  decreed,  after  a 
hearing  on  the  issue,  it  shall  be  sold  at  public  auction  before  the  Judge 
taking  cognizance  of  the  partition,  and  in  the  form  prescribed  in  this 
Code  for  the  sale  of  property  in  an  executory  action. 

1035  et  seq. 

1340).  ART.  1293.  When  the  partition  can  be  made  extrajudicially, 
the  Judge  having  granted  the  permission  therefor,  the  persons  interested 
may  themselves  prepare  the  inventories,  appraisals  and  the  division, 
partition  and  adjudication  of  the  property  of  the  inheritance ;  and  after 
this  shall  have  been  done,  if  all  the  heirs  should  request  the  approval  of 
the  Judge,  the  latter  must  extend  it  and  order  the  proceedings  filed  in 
the  protocol,  in  order  that  the  copy  of  his  allotment  may  be  issued  to 
each  person  interested. 

1316,  1341. 


256 

1341)-  ART.  1294.  Even  though  there  should  be  minors  among  the 
heirs,  the  partition  may  be  made  extrajudicially,  if  their  father  should 
have  permitted  it  by  authorizing  the  executor  or  another  person  whom 
he  may  appoint  to  take  part  therein. 

1316. 

CHAPTER   IV. 
Division  of  common  property. 

NOTE. — In  view  of  the  complicated  and  confusing  character  of  the  provisions 
which  have  been  enacted  with  regard  to  the  division  of  common  property,  the 
pertinent  articles  have  been  reproduced  here  in  the  following  order: 

1.  All  the  articles  of  the  Code  which  constitute  this  chapter  therein. 

2.  Articles  38  to  42  of  Law  30  of  1888,  which  are  the  only  ones  in  force  at  the 
present  time,  in  accordance  with  the  provisions  of  article  39  of  Law   100  of  1892 — 
ordinal   1360,  and  because  the  other  pertinent    articles — 43  to  98 — were  expressly 
repealed  by  article  87  of  the  said  Law. 

3.  The  article  of  Law  105  on  the  subject. 

4.  Finally,  articles  39  and  74  of  Law  100  of  1892,  which  are  specially  in  force. 
The  following  are  the  articles  of  the  Code : 

1342).  ART.  1295.  When  the  division  of  property  held  in  common, 
not  pertaining  to  a  succession,  shall  be  necessary,  the  co-owner  desiring 
it  shall  address  his  petition  to  the  Judge  of  competent  jurisdiction, 
clearly  and  precisely  stating  the  property  to  be  divided  and  the  persons 
between  whom  it  is  to  be  divided,  as  well  as  their  domicile. 

1343).  ART.  1296.  The  Judge  shall  refer  the  petition  to  all  the  other 
co-owners  or  to  their  legitimate  representatives  for  the  ordinary  term,  in 
order  that  they  may  state  whether  they  agree  or  not  to  the  division. 
The  co-owners  failing  to  make  answer,  or  failing  to  do  so  in  the  manner 
stated,  shall  be  understood  to  agree  to  the  division.* 

1344).  ART.  1297.  If  any  person  should  object  to  the  division,  and 
ordinary  action  shall  be  instituted  against  the  latter  which  shall  pursue 
its  entire  course. 

If  the  decision  rendered  in  this  action  should  order  the  division,  or  if 
the  division  should  not  have  been  objected  to  by  any  of  the  co-owners, 
the  Judge  shall  direct  them  to  appoint  a  partitioner  within  three  days 
from  the  date  of  service  of  the  last  notification. 

1 345) .  ART.  1 298.  If  the  co-owners  should  not  agree  as  to  the  appoint- 
ment of  a  partitioner,  or  should  fail  to  appoint  him  within  the  term 
allowed,  the  Judge  shall  appoint  one  on  the  petition  of  any  of  the  co- 
owners. 

1350.      1382  of  the  Civil  Code. 


*  Supplemented  by  "ordinal  1357. 


257 

1346).  ART.  1299.  The  partitioner  must  take  oath  to  discharge  his 
duties  properly,  and  the  one  appointed  by  the  Judge  may  be  chal- 
lenged for  the  same  reasons  as  experts. 

1347).  ART.  1300.  The  record  and  other  papers  necessary  to  make  the 
partition,  shall  be  delivered  to  the  petitioner  and  a  receipt  taken  there- 
for. 

1348).  ART.  1301.  The  provisions  of  articles  1280  to  1291  are  common 
to  these  proceedings.* 

1349).  ART.  1302.  When  it  shall  be  necessary  to  ascertain  the  value 
of  the  property  to  be  divided,  it  shall  be  appraised  by  experts,  who  shall 
be  appointed  and  who  shall  discharge  their  duties  in  accordance  with 
the  provisions  of  Chapter  6,  Title  II  of  this  Book. 

1350).  ART.  1303.  When  a  piece  of  land  is  to  be  divided  into  material 
parts,  instead  of  partitioners,  surveyors  shall  be  appointed  for  the  pur- 
pose, and  as  soon  as  the  division  shall  be  approved,  the  Judge  shall  place 
each  of  the  persons  in  possession  of  the  part  allotted  to  him  after  the 
setting  of  boundary  marks  which  shall  be  made  before  the  Judge  and 
the  expert  surveyors. 

Here  follows  articles  38  to  42  of  Law  30  of  1888,  the  only  articles  appli- 
cable, in  accordance  with  the  provisions  of  article  39  of  Law  100  of  1892 
— ordinal  1360.  Article  37  governs  as  a  provision  of  a  civil  character. 

1351).  ART.  37  of  Law  30  of  1888.  In  the  division  of  common  tene- 
ments, the  provisions  of  articles  2335,  2336,  2337,  2338,  2339,  2340  of 
the  Civil  Code  shall  be  observed. 

1352).  ART.  38  of  Law  30  of  1888.  When  any  of  those  possessing 
land  in  common  shall  apply  to  the  Circuit  Judge  for  the  division  and 
award  of  the  right  corresponding  to  him,  the  Judge,  within  twenty-four 
hours  next  after  the  presentation  of  the  petition,  shall  order  that  said 
division  be  made  and  that  all  the  co-owners  appear  in  person  or  through 
an  attorney  in  fact,  within  sixty  days,  and  produce  the  titles  of  owner- 
ship showing  in  a  trustworthy  manner  the  right  which  each  may  have 
in  the  common  property. 

1353).  ART.  39  of  Law  30  of  1888.  Notice  of  the  order  of  the  Judge 
shall  be  served  ex  proprio  motu,  personally,  upon  the  persons  interested 
and  upon  the  adjoining  owners  who  may  be  in  the  place  of  the  proceed- 
ings; and  by  the  means  of  edicts  posted  in  the  capitals  of  the  Circuits, 
upon  absentees.  Edicts  shall  also  be  ordered  posted  in  the  capitals  of 
the  districts  where  co-owners  or  adjoining  owners  may  reside,  when  their 
residence  is  known  and  provided  that  the  Districts  be  not  situated  at 
more  than  thirty  miriameters  from  the  capital  of  the  Circuit  in  which 
the  estate  is  situated  and  where  the  proceedings  are  being  held. 


*  The  articles  cited  are  ordinals  1326  to  1338. 


1354)-  ART.  40  of  Law  30  of  1888.  The  edicts  shall  be  posted  the 
same  day  the  division  is  decreed,  in  the  capital  of  the  Circuit,  and  shall 
remain  posted  for  sixty  days ;  in  distant  Districts  they  shall  be  posted 
for  ten  days ;  and  in  either  case,  the  dates  of  posting  and  removal  of  the 
edicts  shall  be  recorded.  The  Judge  or  Judges  commissioned  to  post 
the  edicts  in  distant  Districts,  are  obliged  to  order  them  posted  the  same 
day  they  are  received,  and  return  them  ex  proprio  motu  upon  the  very 
day  upon  which  the  period  for  which  they  are  required  to  be  posted,  ex- 
pires, in  order  that  they  may  be  attached  to  the  record. 

1355).  ART.  41  of  Law  30  of  1888.  When  the  division  of  an  estate 
held  in  common  is  requested,  the  boundaries,  the  number  and  names  of 
the  persons  known  to  be  interested,  the  right  corresponding  to  each  of 
them,  the  places  or  localities  where  situated,  the  servitudes  of  waters 
and  rights  of  way  which  it  enjoys  or  which  are  a  charge  thereon,  the 
various  kinds  of  lands,  the  watering  places  and  waters  running  there- 
through, shall  be  clearly  stated. 

1356).  ART.  42  of  Law  30  of  1888.  The  citation  having  been  made, 
publicly  or  personally,  all  those  who  believe  they  have  a  right  to  the 
common  estate,  shall  present,  within  the  eight  days  next  after  the  re- 
moval of  the  edicts  in  the  place  where  the  proceedings  are  held,  all  the 
documents  or  titles  of  former  ownership  from  the  person  or  persons  from 
which  the  titles  of  the  actual  possessors  were  originally  derived,  and  the 
documents  which  clearly  establish  the  right  they  enjoy.  In  the  petition 
with  which  these  documents  are  exhibited,  a  succinct  statement  shall 
be  made  of  the  rights  leading  down  from  the  common  origin. 

The  following  are  the  articles  of  Law  105  of  1890 : 

1357).  ART.  269  of  Law  105  of  1890.  If  the  persons  among  whom  the 
division  is  to  be  made,  or  any  of  them,  should  be  unknown  to  the  peti- 
tioner, or  being  known  their  residence  or  domicile  is  unknown,  they  shall 
be  cited  and  a  defender  (defensor)  assigned  them  in  accordance  with  the 
general  rules.* 

1358).  ART.  270  of  Law  105  of  1890.  Articles  37  to  90  of  Law  30  of 
1888  shall  be  applied,  when  the  division  of  tenements  belonging  to  com- 
munities of  natives  is  involved,  in  which  the  following  circumstances 
are  also  attendant :  that  the  number  of  co-owners  is  uncertain  or  exceeds 
fifty ;  that  their  existence  be  from  time  immemorial  or  more  than  thirty 
years,  and  that  the  thing  held  in  common  is  worth  more  than  ten  thou- 
sand pesos.  In  other  cases  the  provisions  of  the  Judicial  Code  and 
of  the  additional  laws  on  the  subject  shall  govern. 

1359).  If  the  arbitrators  referred  to  in  article  44  of  the  said  Law  30 
of  1888  should  not  comply  with  the-  duty  imposed  upon  tlu'in  by  article 
59  of  the  said  Law  within  ninety  days,  in  addition  to  being  held  liable  for 

*This  article  supplements  ordinal  1343. 


259 

the  damage  which  the  persons  interested  may  suffer,  compulsory  process 
shall  be  employed  by  the  Circuit  Judge  who  may  have  taken  cognizance 
of  the  matter,  by  the  imposition  of  successive  fines  up  to  one  hundred 
pesos,  upon  a  report  from  the  Secretary  of  the  Board  of  arbitrators,  who 
may  also  be  fined  in  the  same  manner,  if  he  should  delay  rendering  the 
report  requested. 

The  following  are  the  articles  of  Law  100  of  1892. 

1360).  ART.  39  of  Law  100  of  1892.  The  method  of  procedure  in  the 
division  of  common  property  shall  hereafter  be  that  prescribed  by 
articles  38  to  42  of  Law 30  of  1888,  and  1298  et  seq.,  of  the  Judicial  Code.* 

1361).  ART.  74  of  Law  100  of  1892.  When  it  shall  not  be  possible  to 
obtain  the  documents  which  establish  the  common  origin  of  an  undivided 
tenement,  and  the  possessors  representing  titles  for  two-thirds  of  the 
value  of  the  original  tenement  should  request  the  division  of  the  latter, 
the  Judge  shall  decree  such  division  which  shall  be  made  in  accordance 
with  the  provisions  of  law  governing  the  matter. 


CHAPTER  V. 
Surveys  and  demarcations  of  tenements. 

1362).  ART.  1304.  Every  owner  or  usufructuary  of  real  property  has 
the  right  to  demand  its  survey  and  demarcation. 

1363).  ART.  1305.  The  petition  for  the  survey  and  demarcation  must 
be  presented  to  the  Judge  of  the  Circuit,  Province  or  Territory  in  which 
the  property  to  be  surveyed  may  be  situated;  and  if  such  property 
should  be  situated  in  several  Circuits,  Provinces  c5r  Deparmtents,  the 
Judges  of  the  latter  shall  take  cognizance  of  said  petition,  to  the  exclu- 
sion of  the  others. 

1364).  ART.  1306.  The  petitioner  must  submit  with  his  petition  some 
proof,  even  though  summary,  establishing  the  bounds  of  his  estate. 

1365).  ART.  1307.  The  petition  shall  be  referred  for  three  days  to 
each  of  the  owners  or  usufructuaries  of  the  adjoining  tenements. 

1372,  1369. 

1366).  ART.  1308.  If  the  defendants  should  plead  dilatory  exceptions, 
the  latter  shall  be  heard  and  decided  as  in  an  ordinary  action. 

275- 

1367).  ART.  1309.  If  such  exceptions  should  not  be  pleaded,  or  if 
those  pleaded  should  be  overruled  or  declared  not  to  lie,  whether  answer 

*  Articles  38  to  42  of  Law  30,  and  1298  of  the  Code,  cited,  are  ordinals  1352  to 
1356  and  1345,  respectively. 


260 

shall  have  been  made  to  the  references  or  not,  the  Judge  shall  set  a  day 
and  hour  for  the  survey,  and  shall  direct  in  the  same  order  that  the 
experts  who  are  to  take  part  in  the  proceedings  be  appointed ;  a  district 
Judge  may  be  commissioned  to  conduct  the  survey,  if  all  the  property 
to  be  surveyed  should  be  situated  in  his  district. 

1368).  ART.  1310.  The  said  Judge,  accompanied  by  his  Secretary,  by 
the  persons  desirous  of  being  present  and  by  the  experts,  shall  indicate 
the  boundaries  and  cause  the  respective  posts  (mojones)  to  be  set,  after 
having  convinced  himself  of  the  identity  of  the  estates,  first  hearing  the 
experts,  and  considering  the  titles  of  ownership  which  the  owners  must 
present  at  said  proceedings ;  a  full  record  shall  be  made  of  all  these  facts 
which  shall  be  signed  by  the  Judge,  his  Secretary,  the  experts  and  the 
persons  interested  who  may  have  been  present. 

1369).  ART.  1311.  The  record  mentioned  shall  be  referred  again  for 
three  days  to  the  owners  of  the  surveyed  estates. 

1365,  1372. 

1370).  ART.  1312.  Upon  the  expiration  of  the  terms  of  reference,  if 
none  of  the  persons  interested  should  object,  the  Judge  shall  place  each 
owner  in  possession  of  his  tenement. 

1371).  ART.  1313.  If  there  should  be  opposition  on  the  part  of  any  of 
the  persons  interested,  either  with  regard  to  the  survey  made  or  the 
petition  for  the  survey,  the  matter  shall  be  heard  in  an  ordinary  action, 
in  which  the  person  making  the  opposition  shall  be  considered  as  the 
defendant,  without  prejudice  to  the  survey  being  approved  and  carried 
out  in  the  terms  of  the  preceding  article,  as  to  such  part  to  which  there 
may  have  been  no  objection  or  opposition. 

.  Expressly  repealed  by  article  338  of  Law  105  of  1 890,  and  subrogated 
by  the  following: 

1372).  ART.  272  of  Law  105  of  1890.  If  there  should  be  opposition 
on  the  part  of  any  of  the  persons  interested,  either  with  regard  to  the 
survey  made  or  the  petition  for  the  survey,  the  matter  shall  be  heard  in 
an  ordinary  action,  in  which  the  person  making  the  opposition  shall  be 
considered  as  the  plaintiff,  without  prejudice  to  the  survey  being 
approved  and  Carried  out  in  the  terms  of  article  1312  of  the  Judicial 
Code,  as  to  such  part  to  which  there  may  have  been  no  objection  or 
opposition. 

1373).  ART.  1314.  In  the  said  ordinary  action  no  other  documents 
can  be  introduced  but  those  presented  in  the  special  proceedings  for 
survey,  referred  to  in  this  Chapter,  unless  the  party  desirous  of  introduc- 
ing them  should  swear  that  he  had  no  knowledge  of  said  documents 
during  the  special  proceedings  mentioned,  or  that  it  was  impossible  for 
him  to  present  them  at  that  time-. 

841. 


CHAPTER  VI. 

Possessory  actions. 

NOTE. — For  the  purpose  of  avoiding  confusion  only  such  articles  relating  to  these 
actions  are  translated,  as  are  still  in  force.  Therefore  ordinal  articles  1374  to  1412, 
as  they  appear  in  the  Angarita  edition  of  the  Judicial  Code,  are  omitted. 

1413).  ART.  1322  of  the  Code.  If  a  person  in  possession  of  a  thing 
should  be  disturbed  therein,  he  may  appear  before  the  Judges  of  com- 
petent jurisdiction  and  present  a  formal  complaint  against  the  disturber 
in  order  that  the  disturbance  may  be  discontinued  and  bond  given  to 
prevent  its  recurrence. 

The  complainant  must  attach  to  his  complaint  the  following  evidence : 
i .  That  he  has  been  for  at  least  one  year  in  quiet  and  pacific  possession 
of  the  thing,  in  person  or  through  another;  and  2.  That  the  defendant 
is  disturbing  or  molesting  him  in  this  possession,  it  being  necessary  in 
such  case  to  specify  the  acts  constituting  the  disturbance. 

1421,1420.     785,  972  of  the  Civil  Code. 

1414).  ART.  1323  of  the  Code.  Upon  the  complaint  being  thus  pre- 
sented, the  Judge  shall  refer  it  for  forty-eight  hours  to  the  defendant, 
in  order  that  he  may  present  evidence  in  rebuttal  of  the  charges  brought 
against  him,  and  if  he  should  fail  to  do  so  or  the  evidence  should  not  dis- 
pose of  the  charges,  the  Judge  shall  order  that  the  acts  of  disturbance  be 
stopped,  and  enjoin  the  disturber  from  repeating  them,  under  the 
penalty  of  paying  a  fine  of  fifty  to  two  hundred  pesos  in  favor  of  the 
complainant,  and  the  loss  and  damage  which  the  latter  may  suffer. 
This  obligation  shall  be  assured  by  a  bond  to  the  satisfaction  of  the  Judge. 

1415).  ART.  1324  of  the  Code.  If  the  disturber  should  claim  to  have 
a  better  right  to  the  thing  than  the  plaintiff,  he  may  enforce  his  right  in 
an  ordinary  action,  without  prejudice  to  the  provisions  of  the  preceding 
article. 

1416).  ART.  1325  of  the  Code.  In  cases  of  disturbance,  the  mere 
holder  of  the  thing  is  obliged  to  give  the  proper  notice,  as  soon  as  such 
disturbance  begins,  to  the  true  owner  or  possessor,  in  order  that  the 
latter  may  institute  proceedings. 

Any  omission  in  this  regard  on  the  part  of  the  mere  holder,  renders 
him  liable  to  the  person  in  whose  name  he  holds  the  thing. 

9  78,  984  of  the  Civil  Code. 

1417).  ART.  282  of  Law  105  of  1890.  There  is  forcible  dispossession: 
i .  When  a  person  deprives  another  of  the  possession  of  a  thing,  or  of  the 
seizin  thereof,  availing  himself  of  force;  2.  When  in  the  absence  of  the 


262 

possessor,  or  of  the  holder,  another  takes  possession  of  the  thing,  and 
upon  said  possessor  or  holder  returning,  he  is  repelled  by  force ;  and  3 . 
When  the  public  authorities,  excepting  the  cases  prescribed  by  law, 
deprive  anyone  of  the  possession  or  the  seizin  of  a  thing,  without  due 
process 'of  law. 

1418).  ART.  283  of  Law  105  of  1890.  He  who  sues  for  the  restitution 
of  the  thing  of  which  he  was  forcibly  dispossessed  must  present  the  proof 
establishing  the  possession  which  he  enjoyed,  or  the  seizin,  as  the  case 
may  be,  and  also  the  proof  of  the  dispossession.  The  complaint  shall  be 
referred  to  the  defendant,  who  shall  be  the  person  in  whose  possession  the 
thing  may  be,  for  a  term  of  six  days,  in  order  that  he  may  make  answer 
and  submit  evidence  in  his  favor.  If  the  allegations  and  evidence  should 
show  that  there  has  been  violent  dispossession,  the  Judge  shall,  within 
twenty-four  hours,  order  that  the  person  who  had  been  deprived  of  the 
possession  or  seizin  be  replaced  therein,  force  being  employed  if  necessary. 
An  appeal  interposed  from  this  decision  shall  be  granted  in  a  suspensive 
effect ;  but  no  remedy  whatsoever  shall  be  granted  from  the  orders  issued 
in  accordance  wth  the  decision  of  the  superior  court,  excepting  a  com- 
plaint and  the  exercise  of  an  ordinary  action  for  the  enforcement  of  the 
rights  which  the  person  dispossessing  may  consider  that  he  has. 

1420,  1423,  773-785,  980  to  985  of  the  Civil  Code. 

1419).  ART.  284  of  Law  105  of  1890.  In  case  of  disturbance  of  posses- 
sion, the  order  which  may  be  issued  to  cause  its  discontinuance  and  to 
enjoin  the  disturber  from  again  committing  such  acts,  may  be  appealed 
from  in  a  devolutive  effect ;  and,  consequently,  the  decision  of  the  Judge 
shall  be  carried  out  at  once,  without  prejudice  to  the  decision  of  the 
superior  on  the  appeal. 

1420).  ART.  1330  of  the  Code.  In  order  to  establish  the  disturbance 
and  the  violent  dispossession,  any  of  the  means  of  proof  provided  by  this 
Code  may  be  employed.  If  the  testimony  of  witnesses  should  be  em- 
ployed, the  latter  must  consist  of  two  depositions  taken  even  without  the 
citation  of  the  other  party,  but  in  the  ordinary  form. 

When  the  violent  dispossession  is  charged  against  a  public  authority  or 
official,  it  shall  be  established  by  the  report  of  said  authority  or  offi- 
cial, with  a  copy  of  the  return  or  proceeding  the  basis  of  the  complaint 
being  attached  thereto. 

This  report  shall  be  requested  by  the  Judge  before  whom  the  petition 
is  filed,  a  term  being  fixed  within  which  it  is  to  be  made. 

1421).  ART.  285  of  Law  of  105  of  1890.  The  Judge  competent  to  take 
cognizance  of  the  complaint  relating  to  the  violent  dispossession  and 
acquisition  of  possession,  is  that  of  the  Circuit  in  which  the  realty  is 
situated. 

1422).  ART.  1333  of  the  Code.     The  suit  for  the  recovery  of  the  dam- 


ages  caused  by  the  disturbance  of  possession  or  violent  dispossession, 
shall  be  instituted  and  prosecuted  before  the  Judge  who  may  be  of  com- 
petent jurisdiction  in  accordance  with  the  general  rules,  and  according 
to  the  ordinary  procedure. 

1423.)  ART.  1334  of  the  Code.     If  possession  be  involved,  the  proofs 
relating  thereto  shall  refer  to  facts  from  which  the  Judge  may  deduce  the 
right  thereto,  in  accordance  with  the  substantive  laws. 

785,  972  et  seq.  of  the  Civil  Code. 

1424).  ART.  40  of  Law  100  of  1892.  The  purpose  of  possessory  action 
is  the  exercise  of  the  possessory  rights  of  action  treated  of  in  Titles  1 3  and 
14,  Book  II,  of  the  Civil  Code. 

1425).  ART.  41  of  Law  100  of  1892.  Any  person  who  may  be  in  regu- 
lar possession  of  an  immovable  of  which  a  third  person  is  the  mere  holder 
under  a  lease  or  any  other  contract  which  does  not  transfer  ownership, 
which  may  have  terminated  for  any  cause  whatsoever,  may  request  the 
Judge  of  competent  jurisdiction  that  the  seizin  or  judicial  possession  of 
the  thing  be  summarily  given  him,  and  in  support  of  his  petition  he  shall 
accompany  sufficient  proof  of  the  facts  upon  which  he  bases  it. 

1426).  ART.  42  of  Law  looof  1892.  The  Judge  being  convinced  of  the 
improper  retention  of  the  tenement,  and  that  the  regular  possession  be- 
longs to  the  petitioner,  shall  order  that  the  holder  thereof  deliver  it  to 
him.  Service  of  this  order  shall  be  personally  made,  and  may  be  ap- 
pealed from  in  a  devolutive  effect  only. 

1427).  ART.  43  of  Law  looof  1892.  If,  before  the  expiration  of  the 
term  which  the  Judge  may  set  for  the  delivery  of  the  tenement,  the 
holder  thereof  should  present  to  the  Judge  the  proof  of  a  just  title  which 
he  may  have  to  retain  or  possess  it,  the  order  of  ejectment  shall  be  re- 
voked on  his  petition.  But  if  the  holder  should  permit  said  term  to 
expire  without  making  any  complaint  and  without  vacating  the  tene- 
ment, or  if  he  should  fail  to  produce  the  evidence  authorizing  him  to  re- 
tain it,  the  Judge,  on  the  petition  of  the  petitioner,  shall  order  the  eject- 
ment of  the  former,  which  order  shall  be  carried  out .  even  with  the 
employment  of  force  if  necessary,  and  notwithstanding  any  appeal  from 
the  order,  which  can  be  granted  in  a  devolutive  effect  only. 

If  there  should  be  improvements,  works  or  plantings  on  the  tenement, 
which  the  holder  thereof  should  claim  as  his  own  at  the  time  of  the  eject- 
ment, a  memorandum  shall  be  made  upon  the  return,  of  the  class,  area, 
and  condition  of  the  things  claimed,  which  shall  be  appraised  by  ex- 
perts appointed  by  the  parties  and  by  the  Judge,  in  a  proper  case ;  and 
upon  payment  having  been  made  therefor,  or  bond  to  the  satisfaction  of 
the  Judge  having  been  given  for  their  payment,  the  ejectment  shall  be 
proceeded  with. 

1428).  ART.  281  of  Law  105  of  1890.     If  the  delivery  of  rural  property 


264 

should  be  involved,  the  possessors  of  the  adjoining  tenements  shall  be 
personally  cited  to  be  present  thereat. 

CHAPTER  VII. 

Denunciation  of  a  New  Work. 

1429).  ART.  1337.  He  who  believes  himself  prejudiced  by  the  work  or 
construction  which  another  is  making,  may  demand  the  suspension  of 
said  work  in  whole  or  in  part,  before  the  Judge  of  the  place  where  it  is 
being  made. 

1430).  ART.  1338.  The  complainant  must  attach  to  his  petition  the 
proof  of  the  damage  which  he  suffers  in  his  property,  and  proof  that  the 
latter  belongs  to  him. 

756  of  the  Civil  Code. 

1431).  ART.  1339.  The  complaint  having  been  filed,  the  Judge  shall 
immediately  proceed  with  his  Secretary  and  two  experts,  which  he  shall 
appoint,  to  the  place  where  the  work  is  under  construction,  after  citing 
the  complainant  and  the  defendant,  and  indicating  the  hour  when  the 
inspection  is  to  be  made. 

1436. 

1432).  ART.  1340.  If  the  proofs  presented  and  the  report  of  the  ex- 
perts, which  must  be  written  immediately,  should  show  the  existence  of 
the  damages  claimed  by  the  complainant,  the  Judge  shall  at  the  same 
proceeding  direct  the  defendant  or  the  person  acting  in  his  place  where 
the  work  is  under  construction,  or  the  persons  constructing  it,  to  sus- 
pend said  work,  and  to  demolish  at  the  cost  of  the  defendant  what  may 
have  been  constructed,  if  such  construction  could  not  be  preserved  with- 
out injuring  the  complainant. 

This  decision,  which  is  of  an  interlocutory  character,  may  be  appealed 
from  in  a  devolutive  effect  only. 

Expressly  repealed  by  article  338  of  Law  105  of  1890,  and  subrogated 
by  the  following : 

1433).  ART.  286  of  Law  105  of  1890.  If  by  the  proofs  presented  and  the 
report  of  the  experts,  which  must  be  written  immediately,  the  damages 
claimed  by  the  complainant  should  not  be  established,  the  Judge  shall 
deny  the  petition ;  but  if  said  damages  should  be  established,  the  Judge 
shall  at  the  same  proceeding  direct  the  defendant,  or  the  person  acting 
in  his  place  where  the  work  is  under  construction,  or  the  persons  con- 
structing it,  to  suspend  said  work,  and  to  demolish  at  the  cost  of  the 
defendant  what  may  have  been  constructed,  if  such  const  ruci  ion  could 
not  be  preserved  without  injuring  tin-  complainant. 


265 

The  first  decision,  which  is  of  an  interlocutory  character,  may  be 
appealed  from  in  both  effects  by  the  complainant;  and  the  second,  of 
the  same  character,  may  be  appealed  from  by  the  defendant  only,  in  a 
d evolutive  effect. 

H37- 

1434).  ART.  1341.  To  convince  himself,  in  a  necessary  case,  that  the 
work  has  not  been  continued  after  the  prohibition  of  the  Judge,  he  shall 
include  in  the  record  a  precise  and  exact  statement  of  the  condition  and 
extent  of  the  work  when  its  construction  was  enjoined. 

H35- 

1435).  ART.  1342.  If  the  work  should  be  continued  after  the  judicial 
prohibition,  or  what  may  have  been  constructed  should  not  be  demol- 
ished, in  a  proper  case,  the  complainant  shall  have  the  right  to  recover 
the  damages  which  he  may  incur  from  the  person  responsible  for  the 
continuation  or  failure  to  demolish  the  work;  but  this  right  of  action 
can  be  exercised  only  in  a  distinct  ordinary  action,  in  the  same  manner 
as  that  which  the  complainant  may  have  for  the  damages  arising  from 
the  construction  of  the  work  to  the  condition  it  was  in  when  denounced. 

1436) .  ART.  1343.  The  experts  appointed  by  the  Judge,  in  accordance 
with  the  provisions  of  article  1339,  cannot  be  challenged  by  the  parties.* 

1437).  ART.  1344.  If  the  defendant  should  be  of  the  opinion  that  he 
has  the  right  to  construct  the  work  which  he  has  been  enjoined  from 
constructing,  he  may  seek  to  enforce  his  rights  in  an  ordinary  action 
against  the  complainant,  but  he  can  do  so  only  after  complying  with  the 
orders  of  the  Judge  rendered  in  the  proceedings  on  the  denunciation  of 
the  new  work.  In  said  action  the  defendant  may  also  claim  the  damages 
which  the  denunciation  may  have  caused  him  and  to  which  he  is  entitled 
if  the  complaint  should  be  declared  groundless;  the  measure  of  the  dam- 
ages shall  be  fixed  by  the  sworn  statement  of  the  defendant,  regulated 
by  the  Judge  if  objected  to,  and  if  the  latter  should  really  find  them  ex- 
cessive. 

1439- 

1438).  ART.  1345.  The  suspension  of  the  new  work  shall  continue 
until  the  ordinary  action  referred  to  in  the  preceding  article  shall  be 
concluded,  if  permission  should  be  granted  therein  to  continue  the  work, 
or  until  the  owner  of  the  latter  gives  bond  to  secure  its  demolition  and 
the  payment  of  the  resulting  damages,  in  the  event  of  his  being  cast  in 
the  said  suit. 

1440. 
*The  article  cited  is  ordinal  1431. 


266 

1439)-  ART  !346-  The  action  granted  the  defendant  by  article  1344 
to  enforce  his  right  in  an  ordinary  suit  to  continue  the  work  denounced, 
shall  last  one  year  only,  counted  from  the  date  of  the  notice  of  the  order 
directing  the  suspension  of  the  work. 

Upon  the  expiration  of  this  term,  there  shall  be  no  remedy  whatsoever 
against  the  suspension  ;  nor  shall  there  be  in  the  event  of  the  defendant 
being  cast  in  the  ordinary  action  which  he  may  institute  against  the 
complainant. 

1440).  ART.  1347.  The  bond  referred  to  in  article  1345  must  be  to  the 
satisfaction  of  the  complainant,  unless  the  latter  should  be  cast  in  the 
first  instance  of  the  action  which  the  defendant  may  have  brought 
against  him,  and  unless  the  bond  be  offered  in  the  second  instance;  as 
in  such  case  it  shall  be  to  the  satisfaction  of  the  Justice  hearing  the 
cause  in  the  second  instance. 

CHAPTER  VIII. 
Denunciation  of  new  works. 

1441)  .  ART.  1  348.  Any  person  believing  that  his  building  or  tenement 
is  threatened  with  damage  from  another  building  or  any  other  work 
whatsoever  which  is  liable  to  collapse,  may  demand  the  demolition  there- 
of, or  its  repair  if  possible. 

The  Judge  of  competent  jurisdiction  to  hear  complaints  of  this  char- 
acter, is  the  Judge  of  the  Circuit,  Territory  or  Province  in  which  the 
building  or  work  threatening  to  collapse  may  be  situated. 


1442).  ART.  1349.  The  complaint,  which  must  be  directed  against 
the  owner  or  usufructuary  of  the  building  or  work  threatening  to  col- 
lapse, having  been  made,  the  Judge  shall  immediately  proceed  to  inspect 
the  said  building  or  work,  with  two  experts  whom  he  shall  appoint  forth- 
with, and  who  cannot  be  challenged. 

1443).  ART.  1350.  Without  further  delay  than  that  necessary  for  the 
appearance  and  taking  possession  of  the  experts,  and  for  the  citation  of 
the  complainant  and  defendant,  the  Judge  shall  proceed  together  with 
them,  his  secretary  and  the  parties,  if  they  should  be  desirous  of  being 
present,  to  the  place  where  the  building  in  question  is  situated  ;  he  shall 
there  make  a  careful  examination  and  shall  hear  the  opinion  of  the 
experts  which  shall  immediately  be  put  in  writing;  and  if  the  conclusion 
should  be  reached  that  said  building  or  work  really  threatens  to  collapse 
and  damage  the  property  of  the  complainant,  the  Judge,  eo  instanti, 
shall  issue  an  order  directing  that  the  defendant  proceed  with  the 
demolition  of  the  building  or  work,  or  to  repair  it,  if  such  repair  should  be 
sufficient  to  prevent  the  damage. 


267 

1444).  ART.  1351.  If  the  defendant  should  not  comply  with  the  orders 
of  the  Judge  within  the  term  which  the  latter  may  have  allowed  him  for 
the  purpose,  nor  should  furnish  bond,  to  the  satisfaction  of  the  com- 
plainant, to  repair  the  damage  feared,  the  Judge,  on  the  petition  of  the 
person  interested  shall  place  the  latter  in  possession  of  the  building  about 
to  collapse,  ejecting  therefrom  those  occupying  it,  in  order  that  he  may 
demolish  or  repair  it,  within  a  term  similar  to  that  mentioned. 

1448,  1450. 

1445).  ART.  1352.  The  complainant  cannot  expend  in  the  demolition 
or  repair  a  greater  sum  than  that  which  the  Judge,  in  accordance  with 
the  report  of  the  experts,  may  have  fixed  for  such  purposes;  and  until 
the  complainant  shall  be  reimbursed  for  said  expenses,  he  shall  have  the 
right  to  remain  in  possession  of  the  old  work  or  the  material  thereof; 
but  if  it  should  be  of  a  fructiferous  character,  when  he  returns  it  he  shall 
be  obliged  to  return  the  fruits  thereof,  if  he  be  paid  the  interest  on  the 
money  advanced,  at  the  rate  of  six  per  cent  per  annum. 

1446).  ART.  1353.  If  the  old  work  should  not  be  of  a  fructiferous 
character  and  if  it  should  not  be  possible  to  cover  with  the  proceeds 
from  the  sale  thereof  the  expenditures  incurred  in  its  demolition  or 
repair,  the  Judge  shall  issue  an  order  for  the  amount  thereof  against  the 
owner  of  said  work  in  favor  of  the  complainant  who  defrayed  the  ex- 
pense, which  order  shall  carry  execution. 

But  if  the  owner  should  be  unable  to  pay  the  sum  fixed,  the  old  work 
or  its  materials  shall  be  adjudicated  to  the  plaintiff  in  payment,  if  he 
should  so  request. 

1447).  ART.  1354.  If  the  old  work  denounced  should  belong  to  several 
and  one  of  the  co-owners  should  demolish  or  repair  it,  the  latter  shall 
have  the  same  rights  of  action  against  the  other  co-owners  as  are  granted 
the  complainant  under  similar  circumstances  in  the  preceding  articles. 

1448).  ART.  1355.  If  the  old  work  should  not  be  demolished,  repaired 
or  rebuilt  by  the  complainant  within  the  term  which  the  Judge  may 
allow  him,  according  to  the  circumstances,  the  matter  shall  be  considered 
as  closed,  with  the  costs  taxed  against  the  complainant;  but  without 
prejudice  to  the  institution  of  new  proceedings. 

H44,  H50. 

1449).  ART.  1356.  The  decisions  rendered  in  these  actions  are  inter- 
locutory and  subject  to  appeal,  but  only  in  a  devolutive  effect. 

1450).  ART.  1357.  In  the  event  of  the  complainant  repairing  or  re- 
building the  edifice,  the  form  and  dimensions  of  the  old  edifice,  shall  be 
retained  in  all  its  parts,  unless  it  should  be  necessary  to  alter  them  to 
avoid  the  danger,  in  which  case  they  shall  be  altered  with  the  authority 
of  the  Judge. 


268 

I451)-  ART.  1358.  When  the  old  work  threatens  to  injure  a  public 
place  by  its  collapse,  any  person  may  appear  before  the  agent  of  the 
department  of  public  prosecution  and  denounce  the  existing  danger,  in 
order  that  said  Agent  may  take  steps  for  the  demolition  or  repair  thereof , 
in  accordance  with  the  provisions  of  this  chapter. 

CHAPTER  IX. 

Expropriation  proceedings. 

This  chapter  was  expressly  repealed  by  article  33  of  Law  56  of  1890. 

CHAPTER  X. 
Suits  for  A  ccounting. 

1460).  ART.  1367.  He  who  believes  that  he  has  the  right  to  demand 
an  accounting  from  another  in  accordance  with  the  civil  substantive 
laws,  shall  present  his  petition  to  the  Judge  of  competent  jurisdiction, 
according  to  the  general  rules,  accompanying  the  proof  of  the  said  right. 

1461 ) .  ART.  1 368.  If  such  proof  should  consist  of  a  judgment  or  docu- 
ment which,  in  accordance  with  article  1010,  carry  execution,  the  Judge 
shall,  within  twenty-four  hours,  order  the  defendant  to  present  the 
accounts  demanded  of  him,  within  such  term  as  may  be  allowed  him,  in 
view  of  their  nature  and  extent ;  such  period  shall  begin  to  run  from 
the  time  of  service  of  the  order,  which  must  be  done  personally,  and  it 
may  be  extended  on  the  petition  of  the  person  responsible,  if  he  should 
plead  a  just  cause  in  the  opinion  of  the  Judge  for  such  extension.* 

1471,  1474,  1475. 

1462) .  ART.  1 369.  The  order  directing  an  accounting  may  be  appealed 
from  in  a  devolutive  effect  only,  and  the  appeal  shall  be  heard  and  de- 
cided as  an  appeal  from  an  interlocutory  judgment. 

784,  785- 

1463).  ART.  1370.  If  the  defendant  should  not  produce  the  accounts 
within  the  term  which  the  Judge  may  have  allowed  him,  the  complainant 
may,  with  a  copy  of  the  document  which  he  attached  to  his  complaint, 
of  the  decision  ordering  the  accounting  and  the  judicial  attest  of  such 
accounting  not  having  been  made,  institute  executory  proceedings 
against  the  defendant,  for  the  amount  at  which,  under  oath,  he  may 
estimate  the  damage  arising  from  the  failure  to  render  an  accounting. 

*  Article  1010  cited,  was  repealed  by  article  338  of  Law  ms  <>f  (890,  and  subrogated 
by  ordinal  No.  </><> 


269 

Said  amount  may  be  regulated  by  the  Judge,  after  hearing  the  opinion 
of  experts,  if  the  person  responsible  should  so  request. 

1464).  ART.  1371.  The  accounts  having  been  presented,  the  Judge 
shall  order  that  they  be  referred  to  the  complainant,  in  order  that  he 
may  make  such  statements  with  regard  thereto  as  he  may  see  fit,  within 
a  term  of  five  days. 

1476. 

1465).  ART.  1372.  If  the  complainant  should  have  no  objection  to 
make,  the  Judge  shall  approve  them  within  forty-eight  hours  after  the 
said  complainant  shall  have  made  answer  to  the  reference ;  no  appeal  shall 
lie  from  the  decision  he  may  render  for  this  purpose. 

773- 

1466).  ART.  1373.  If  the  complainant  should  object  to  the  accounts, 
which  he  may  do  in  whole  or  in  part,  the  objections  shall  be  referred  to 
the  person  responsible,  for  a  period  of  five  days,  and  if  the  latter  should 
agree  to  all  or  some  of  them,  the  Judge  shall  immediately  set  a  term, 
which  cannot  exceed  six  days,  for  him  to  present  amended  accounts. 

1467).  ART.  1374.  The  orders  contained  in  the  last  part  of  the  pre- 
ceding article  having  been  carried  out  by  the  person  responsible,  if  the 
amendments  should  conform  to  the  objections,  the  Judge  shall  approve 
the  accounts,  and  an  appeal  shall  be  granted  from  the  decision  he  may 
render  to  this  purpose,  in  a  devolutive  effect  only,  the  appeal  being  heard 
and  decided  as  an  appeal  from  an  interlocutory  judgment. 

784, 785- 

1468.  ART.  1375.  If  the  person  responsible  should  fail  to  return  the 
amended  accounts  within  the  term  which  the  Judge  may  have  allowed 
him  for  this  purpose,  the  latter,  on  the  petition  of  the  complainant,  shall 
appoint  an  accountant  to  make  the  change  within  the  terms  which  the 
Judge  may  allow  him,  at  the  cost  of  the  defendant. 

Upon  the  amendment  and  presentation  of  the  accounts  by  the  account- 
ant, the  proceedings  shall  be  had  as  in  the  case  of  article  1372. 

1466. 

1469).  ART.  1376.  If  the  person  responsible  should  not  agree  to  the 
objections  to  the  accounts  made  by  the  complainant,  the  Judge  shall 
receive  evidence  for  the  term  of  thirty  days,  and  thereafter  an  ordinary 
action  shall  be  prosecuted  for  the  purpose  of  proving  the  accounts. 

1466. 

1470).  ART.  1377  If  the  dissent  of  the  person  responsible  should  be 
partial,  the  ordinary  action  instituted  in  accordance  with  the  preceding 


270 

article,  shall  not  be  an  obstacle  to  the  accounts  being  approved  in  so 
far  as  not  questioned,  if  the  complainant  should  so  request. 

1466. 

1471).  ART.  1378.  If  the  person  claiming  to  be  entitled  to  an  account- 
ing from  another  should  not  have  the  proof  of  such  right,  his  peti- 
tion shall  be  heard  in  an  ordinary  action  without  any  special  proceedings. 

1461. 

1472).  ART.  1379  If  two  or  more  persons  are  to  render  accounts 
arising  from  one  and  the  same  administration,  a  single  action  shall  be 
prosecuted ;  but  if  the  accounts  should  be  of  various  administrations, 
even  though  arising  from  one  contract  or  one  affair,  different  actions 
shall  be  prosecuted. 

639  subdivision  4. 

1473).  ART.  1380.  The  provisions  of  this  chapter  do  not  affect  the 
special  administrative  provisions  governing  the  formation  and  presen- 
tation of  accounts  to  be  rendered  by  persons  responsible  to  the  treasury. 

1474).  ART.  1381.  The  orders  directing  the  accountings  having  be- 
come final,  after  the  special  proceedings  established  in  this  chapter, 
they  shall  have  the  value  and  the  force  of  definitive  judgment  partaking 
of  the  nature  of  res  judicata. 

1461. 

1475).  ART.  1382.  Notice  of  the  judicial  order  to  render  an  account- 
ing shall  be  served  personally,  as  is  the  first  notification  in  proceedings 
of  this  character. 

1461. 

1476) .  ART.  1383.  Every  account  must  be  presented  with  its  vouchers 
and  must  be  drafted  clearly  with  the  items  duly  separated. 

CHAPTER  XI. 
Denunciation  of  Mines. 
The  Mining  Code  now  in  force,  has  subrogated  this  Chapter. 

CHAPTER  XII. 
•,  Vacant  and  unclaimed  property. 

1483).  ART.  1390.  Property  having  no  known  owner,  called  by  the 
laws  unclaimed  property  (mostrencos)  shall  belong  to  the  locality  or 
localities  within  which  they  may  be  fmind  or  be  situated. 

1495.     712  of  the  Civil  Code. 


1484)-  ART.  1391.  The  Municipal  "Personero"  of  the  respective 
locality  is  under  the  obligation  of  suing  on  behalf  of  the  latter  for  the 
unclaimed  or  vacant  property  which  may  be  discovered  within  the  con- 
fines of  such  locality. 

Any  individual  has  the  right  to  denounce,  as  unclaimed,  the  property 
which  appears  to  have  no  owner,  and  he  shall  be  heard  as  an  intervenor 
with  the  respective  Municipal  "Personero." 

1486,  1494,  1496. 

1485).  ART.  1392.  In  the  complaint  or  denunciation  made  for  the 
purpose  of  having  certain  property  declared  to  be  unclaimed,  must  be 
very  clearly  stated  the  character  of  the  property,  its  whereabouts  or 
location,  its  boundaries,  if  it  should  be  real  property,  the  possessors  or 
holders  thereof,  if  there  should  be  any,  and  the  reasons  there  may  be  to 
believe  them  unclaimed.  Without  this  requisite  the  complaint  or  de- 
nunciation shall  not  be  heard.  The  "Personero"  appearing  as  com- 
plainant, must  present,  if  he  should  have  them,  the  documents  upon 
which  he  bases  his  action. 

1489. 

1486) .  ART.  1393.  If  a  denunciation  should  be  presented  to  the  Judge 
without  a  petition  on  the  part  of  the  Department  of  Public  Prosecution, 
such  denunciation  shall  be  referred  to  the  latter  for  a  period  of  three  days 
in  order  that  he  may  state  whether  he  desires  to  institute  proceedings  or 
not.  If  the  official  whose  duty  it  is  to  institute  proceedings  should  state 
that  he  will  not  institute  them,  the  denunciation  shall  be  considered 
as  the  complaint,  if  the  person  making  it  should  bind  himself  under 
oath  to  prove  his  statements. 

1484. 

1487).  ART.  1394.  The  Judge  competent  to  take  cognizance  of  these 
proceedings,  whatever  be  the  value  of  the  property  involved,  shall  be 
the  one  of  first  instance  within  whose  jurisdiction  the  property  may  be 
situated  or  within  which  it  may  have  been  discovered. 

1488).  ART.  1395.  The  public  shall  be  informed  of  the  denunciation 
or  complaint  by  means  of  edicts,  in  which  persons  believing  themselves 
to  have  an  interest  in  the  property  in  question  shall  be  summoned,  and, 
furthermore,  the  possessor  or  holder  thereof,  if  there  should  be  any, 
shall  receive  a  copy  thereof.  The  edicts  shall  be  posted  for  six  con- 
secutive months  in  the  most  public  places  of  the  locality  where  the  prop- 
erty may  be  found  or  situated,  as  well  as  in  the  place  where  the  pro- 
ceedings are  being  had.  They  shall,  furthermore,  be  published  at  the 
cost  of  the  complainant  or  party  making  the  denunciation,  or  of  both, 


272 

in  an  official  or  private  newspaper  printed  in  the  place  where  the  pro- 
ceedings are  being  had,  the  publication  being  repeated  in  each  of  the 
six  months  the  edicts  are  to  remain  posted. 

1484,  1490,  1491. 

1489).  ART.  1396.  If  evidence  should  have  been  transmitted  with 
the  denunciation  or  complaint  fully  establishing  that  the  property  is 
abandoned  or  without  a  legitimate  possessor,  the  deposit  thereof  shall 
be  ordered  with  a  person  of  responsibility  appointed  by  the  Judge,  and 
this  fact  and  the  name  of  the  depositary  shall  be  made  known  by  means 
of  edicts. 

The  holder  shall  in  such  case  have  the  right  to  have  the  deposit  made 
with  him,  upon  giving  bond  for  the  care  and  preservation  of  the  prop- 
erty, and  to  return  it  with  its  products,  if  he  should  be  cast  in  the  pro- 
ceedings. 

1485- 

1490).  ART.  1397.  If  the  "personero"  making  the  complaint  or  the 
person  making  the  denunciation,  should  state  that  the  property  in  ques- 
tion is  not  in  the  possession  of  any  one,  and  that  for  this  reason  they  do 
not  indicate  him,  and  furthermore  that  for  this  reason  the  reference 
prescribed  by  article  1395  is  not  made  to  the  said  possessor  or  tenant, 
if  later  there  should  appear  to  be  one,  the  latter  shall  not  be  prejudiced 
by  whatsoever  may  be  done  or  decided  against  his  rights,  unless,  not- 
withstanding such  omission,  he  shall  have  opposed  it  and  entered  an 
appearance  in  the  proceedings,  which  he  may  do  by  summarily  proving 
that  he  was  the  legal  possessor  at  the  time  the  complaint  or  denunciation 
was  made. 

710. 

1491).  ART.  1398.  If  during  the  term  of  the  edicts  any  person  should 
appear  and  claim  to  have  a  right  to  the  property  the  subject  of  the  com 
plaint,  upon  the  expiration  of  such  term  evidence  shall  be  taken  in  the 
proceedings  and  an  ordinary  civil  suit  shall  be  prosecuted  in  accordance 
with  the  procedure  established  for  suits  of  greater  import.  But  if  no 
one  should  appear  within  the  term  indicated,  a  defender  (defensor)  shall 
be  appointed  to  such  property  and  the  proceedings  shall  be  continued 
with  him  as  a  party. 

1488,  1492,  1493,  i4<;7 

1492).  ART.  1399-  If  there  should  In-  a  possessor  or  detainer  of  tin- 
pro  perty,  it  shall  not  be  necessary  to  appoint  to  sueli  proper!  v  a  defender 
in  the  ease  referred  to  in  the  last  part  of  the  preceding  article 


273 

1493)-  ART.  1400.  If  there  should  be  a  possessor  or  detainer,  and  an 
opposer  who  shall  have  entered  an  appearance  within  the  term  of  the 
edicts,  the  proceedings  shall  be  continued  with  all  these  persons  con- 
sidered as  defendants. 

1496,  1497. 

1494).  ART.  1401.  When  a  defender  to  the  property  is  appointed, 
the  expenditures  necessary  to  enable  him  to  perform  his  duties,  shall  be 
defrayed  by  the  person  making  the  denunciation. 

1495).  ART.  1402.  If  the  property  should  be  declared  to  be  vacant  in 
the  decision,  after  such  decision  shall  become  final,  a  copy  shall  be  trans- 
mitted to  the  municipal  corporation  of  the  locality  in  the  favor  of  which 
such  property  may  have  been  declared  to  belong. 

1483. 

1496).  ART.  1403.  If  the  person  making  the  denunciation  should  be 
cast  in  the  suit,  he  shall  be  adjudged  to  pay  the  costs,  and  he  shall  be 
declared  to  -be  liable  for  the  loss  and  damage  which  the  possessor  of 
the  property  may  have  been  caused  by  the  denunciation,  unless  said 
denouncer  should  have  based  his  denunciation  upon  sufficient  proofs 
which,  however  were  dissipated  in  the  suit,  for  causes  other  than  falsifi- 
cation, subornation  or  bribery. 

1497).  ART.  1404.  If  the  person  who  claimed  the  property  as  his  own 
should  be  cast  in  the  suit,  he  shall  be  adjudged  to  pay  the  costs,  and  for 
this  purpose  the  products  of  said  property  shall  be  applied  in  accordance 
with  the  substantive  laws. 

1498).  ART.  1405.  The  private  denouncer  acquires  the  following 
rights : 

1.  If  the  property  were  real,  the  preference  in  the  purchase,  if  the 
bids  are  equal,  and  one-half  of  the  products  of  the  estates  which  the 
possessor  cast  must  satisfy  in  accordance  with  the  preceding  article ;  and 

2.  If  the  property  should  be  movable,  the  enjoyment  of  one  quarter 
of  the  value  thereof. 

CHAPTER  XIII. 

Divorce  and  Annulment  of  Marriage. 

1499).  ART.  1406.  Proceedings  for  divorce  and  annulment  of  mar- 
riage shall  be  prosecuted  in  accordance  with  the  ordinary  procedure 
in  suit  of  greater  import,  without  any  other  special  features  but  those 
indicated  in  this  Chapter. 

1504. 


274 

1500).  ART.  1407.  The  Judge  of  First  Instance  within  whose  terri- 
tory the  spouses  reside,  is  competent  to  take  cognizance  of  these  pro- 
ceedings. 

1504. 

1501).  ART.  1408.  Cases  of  divorce  and  annulment  of  marriage  shall 
be  qualified  and  considered  in  accordance  with  the  substantive  national 
laws. 

However,  every  case  of  separation  of  the  spouses  by  divorce  or  nul- 
lity, shall  be  decided  in  the  territories  ceded  or  which  may  be  ceded 
to  the  Nation,  in  accordance  with  the  laws  of  the  State  to  which  the 
respective  territory  formerly  belonged,  if  the  marriage  in  question  should 
have  been  celebrated  in  accordance  with  the  said  laws. 

Marriages  celebrated  in  any  State  not  that  to  which  a  territory  for- 
merly belonged,  may  be  annulled  in  the  latter,  and  the  spouses  may  be 
separated  by  divorce,  for  causes  which  authorize  dissolution  and  divorce, 
according  to  the  laws  of  the  State  where  the  marriage  was  contracted. 

The  provision  of  the  preceding  paragraph  is  applicable  to  marriages 
contracted  in  a  foreign  country,  and  with  regard  to  which  annulment 
and  divorce  is  requested  in  any  of  the  national  territories. 

The  existence  of  the  laws  to  be  applied,  in  the  cases  of  the  three  pre- 
ceding paragraphs,  must  be  proved  in  the  proceedings  by  means  of  an 
authentic  copy  of  the  provisions  pleaded,  issued  by  the  Executive 
Power  or  by  the  Superior  Tribunal  of  the  respective  Nation  or  State,  and 
a  certificate  of  the  same  regarding  their  force  at  the  time  of  the  celebra- 
tion of  the  marriage. 

1502).  ART.  1409.  As  soon  as  proceedings  for  annulment  or  divorce 
are  instituted,  the  wife  has  the  right  to  demand  that  she  be  placed  in  the 
custody  of  an  honorable  family  in  whom  the  Judge  has  confidence,  that 
of  the  parents  of  the  wife  being  always  given  the  preference.  The 
custody  shall-  continue  while  the  suit  is  pending. 

1503).  ART.  1410.  The  spouses  only  may  sue  for  divorce  and  the 
annulment  of  their  marriage,  and  there  shall  be  no  other  parties  to  the 
suit  but  the  spouse  bringing  it  and  the  spouse  against  whom  it  is  brought. 

1504).  ART.  51  of  Law  153  of  1890.  The  ecclesiastic  tribunals 
shall  take  exclusive  cognizance  of  suits  for  annulment  and  divorce  of 
catholic  marriages  celebrated  at  anytime,  in  accordance  with  the  canon- 
ical laws,  and  the  final  judgment  rendered  shall  produce  all  civil  effects 
in  accordance  with  the  provisions  of  Law  57,  articles  17  and  18. 


275 

CHAPTER  XIV. 
Emancipation  of  children. 

1505).  ART.  1411.  A  father  who,  in  accordance  with  the  substantive 
laws,  should  be  desirous  of  voluntarily  emancipating  a  son  of  his,  must 
request  judicial  authority  therefor  of  the  Judge  of  first  instance  of  the 
territory  in  which  his  domicile  may  be  situated. 

1506).  ART.  1412.  The  petition  shall  be  made  in  writing,  with  a  state- 
ment of  the  reasons  for  the  emancipation,  and  must  be  accompanied  by 
the  certificate  of  birth  of  the  son,  or  in  the  absence  of  the  latter,  by  any 
other  proof  establishing  his  age. 

1507).  ART.  1413.  The  Judge  to  whom  the  petition  may  be  addressed 
shall  appoint  to  the  son  a  curator  ad  hoc  to  whom  after  he  shall  have 
been  sworn  into  office,  shall  be  referred  the  petition  of  the  father.  The 
reference  shall  also  be  made  to  the  son,  and  both  shall  make  answer  in 
the  same  document,  within  the  term  which  the  Judge  may  allow  them, 
and  which  cannot  exceed  five  days. 

1508).  ART.  1414.  If  the  son,  together  with  his  curator,  should  agree 
to  his  emancipation,  the  Judge,  without  further  proceedings,  shall  make 
an  order  authorizing  it,  in  which  order  he  shall  direct  that  the  proceed- 
ings had  be  transmitted  to  the  Notary  who  is  to  authenticate  the 
proper  public  instrument. 

If  the  son  should  not  agree  to  the  emancipation,  the  Judge  shall  order 
that  the  proceedings  be  filed,  without  this  being  an  obstacle  to  the  re- 
newal of  the  petition  of  emancipation. 

1509).  ART.  1415.  The  Judges  shall  not  authorize  any  conditional 
emancipation,  nor  that  of  a  child  who  shall  not  have  attained  the  age 
of  puberty,  nor  that  of  one  with  regard  to  whom  there  does  not  exist  full 
proof  that  he  is  under  the  paternal  power  of  the  person  emancipating 
him. 

1510).  ART.  1416.  Compulsory  emancipation,  which  is  that  which 
may  be  demanded  by  the  son  in  the  cases  provided  for  in  the  substan- 
tive laws,  shall  be  heard  and  decided  in  accordance,  with  the  procedure 
laid  down  for  ordinary  actions  of  greater  import,  and  the  Judge  of  first 
instance  in  whose  territory  the  father  and  the  son  reside,  shall  take 
cognizance  thereof. 

In  these  proceedings  a  curator  ad  litem  shall  be  appointed  to  the  son, 
and,  if  he  should  so  request,  he  shall  be  removed  from  the  power  of  the 
father,  and  placed  under  the  custody  of  another  during  the  pendency  of 
the  proceedings. 

315  of  the  Civil  Code. 


276 


CHAPTER  XV. 

Qualification  as  to  Age. 
(Habilitacion  de  edad.) 

1511).  ART.  1417.  Any  minor  who  is  desirous,  in  accordance  with  the 
substantive  laws,  of  obtaining  qualifications  as  to  age,  must  request  it  in 
writing  and  in  person,  or  without  the  necessity  of  a  curator,  of  the  Judge 
of  first  instance  of  the  territory  in  which  he  resides. 

1512).  ART.  1418.  The  minor  must  attach  to  his  petition : 

1 .  The  certificate  of  his  birth,  or  sufficient  proof  of  his  age. 

2 .  Proof  that  the  minor  is  qualified  to  manage  his  property  (interests) 
profitably  by  himself,  and  of  the  necessity  or  convenience  of  the  quali- 
fications; and 

3.  A  report  upon  the  matters  mentioned  in  the  preceding  article, 
made  by  the  Municipal  Corporation  of  the  place  of  the  domicile  of  the 
minor. 

1513).  ART.  1419.  The  proof s  referred  to  in  the  preceding  article  may 
consist  of  declarations  of  witnesses,  provided  that  the  latter  assert  posi- 
tive acts  by  which  the  capacity  of  the  minor  may  be  deduced  and  the 
necessity  and  convenience  of  the  qualification. 

467,  469,  470,  471. 

1514).  ART.  1420.  The  Judge  shall  refer  the  petition  to  the  two 
nearest  relatives  of  the  minor  who  are  able  to  appear  in  court;  to  his 
curator,  if  the  minor  should  have  relatives  and  a  curator,  and  to  the 
Agent  of  the  Department  of  Public  Prosecution ;  to  each  for  a  term  of 
forty-eight  hours. 

342  of  the  Civil  Code. 

1515).  ART.  1421.  Answer  having  been  made  to  the  references,  or  a 
petition  for  judgment  in  default  having  been  made  the  Judge  shall, 
within  three  days,  decide  whether  he  does  or  does  not  grant  the  quali- 
fication. 

1516).  ART.  1422.  If  it  should  be  granted,  a  copy  of  the  resolution 
shall  be  issued  in  favor  of  the  minor,  which  shall  be  signed  by  the  Judge 
and  his  Secretary,  and  its  publication  shall  be  ordered  for  three  con- 
secutive times  in  the  official  newspaper  of  the  place.  If  it  should  be 
denied,  the  proceedings  shall  be  filed,  unless  the  minor  should  <>fiVr  iu-\v 
proof,  when  the  (k-iiial  shall  have  bec-n  due  to  tin-  insiilliriniry  of  that 
presented.  The  new  petition  shall  be  passed  on  within  the  U-rins 
prescribed. 


CHAPTER  XVI. 

Maintenance. 

1517).  ART.  1423.  Summary  proceedings  for  maintenance  shall  lie 
when  the  petitioner  shall  demand  it  with  any  of  the  documents  that,  in 
accordance  with  article  1010,  carry  execution,  and  which  state  the  obli- 
gation to  furnish  it ;  or  when  there  shall  accompany  the  complaint  evi- 
dence that  the  maintenance  sued  for  is  called  under  the  law  legal,  or 
necessary,  or  that  it  can  be  ordered  furnished  by  the  Judge,  and  not  by 
the  right  of  a  real  action.* 

1526,  1527.     411  et  seq.,  of  the  Civil  Code. 

1518).  ART.  1424.  If  the  document  which  carries  execution,  which 
forms  the  basis  of  these  proceedings,  should  be  conditional,  summary 
proceedings  shall  also  lie,  provided  that  the  document  state  the  net 
amount  due  by  reason  of  maintenance,  and  that  the  sufficient  proof  be 
attached  to  the  complaint  that  the  condition  contained  in  the  docu- 
ment has  been  performed. 

1521,  1526. 

1519).  ART.  1425.  If  the  maintenance  demanded  should  be  of  the 
character  mentioned  in  the  second  part  of  article  1423,  the  petitioner 
must  attach  to  his  petition  proof,  even  though  it  be  summary,  of  the 
origin  of  his  right. 

1520).  ART.  1426.  When  one  of  the  facts  referred  to  in  the  preceding 
article,  should  be  relationship  between  the  petitioner  and  the  respon- 
dent, in  the  absence  of  direct  proof,  it  shall  be  sufficient  in  the  proceed- 
ings in  question,  that  witnesses  testify  to  the  fact  of  said  petitioner  being 
known  in  the  place  of  his  domicile  and  that  his  relationship  is  generally 
admitted  and  considered  certain  in  the  public  opinion. 

1521).  ART.  1427.  In  order  to  establish  the  performance  of  the  con- 
dition, in  the  case  of  article  1424,  in  the  absence  of  direct  proof  it  shall 
be  sufficient  that  the  depositions  of  competent  witnesses  be  attached 
affirming  that  the  acts  of  which  the  condition  consisted,  have  been 
performed. 

1522).  ART.  1428.  The  depositions  referred  to  may  be  taken  without 
the  citation  of  the  parties;  but  the  Judge  receiving  them  must  certify 
immediately  thereafter  that  he  is  acquainted  with  the  witnesses,  and 

*  Article  1010  cited  herein,  has  been  repealed  by  article  338  of  Law  105  of  1890, 
and  subrogated  by  ordinal  article  960. 


278 

that  in  his  opinion  they  suffer  from  no  legal  impediment  preventing 
them  from  testifying. 

467,469,470,471. 

1523).  ART.  1429.  If  maintenance  should  be  demanded  in  the  cases 
and  with  the  proofs  mentioned  in  the  preceding  articles  of  this  chapter, 
the  Judge  within  twenty-four  hours,  and  without  citing  or  hearing  the 
defendant,  shall  order  the  payment  thereof.  The  periodical  sum  and 
the  terms  of  payment  shall  be  fixed  by  the  Judge  in  his  discretion,  when 
the  document  shall  not  express  these  circumstances. 

1524).  ART.  1430.  The  judgment  containing  the  said  order  to  fur- 
nish support,  must  be  executed,  notwithstanding  an  appeal,  which 
may  be  granted  in  a  devolutive  effect  only,  and  it  is  not  an  obstacle  to 
either  of  the  two  parties  instituting  and  prosecuting  an  ordinary  action 
involving  the  same  maintenance. 

1527- 

1525).  ART.  1431.  The  judgment  denying  the  order  to  furnish  main- 
tenance, shall  likewise  not  prevent  the  petitioner  from  seeking  to  en- 
force his  right  again  in  an  ordinary  action,  provided  that  he  furnish  new 
proofs. 

1526).  ART.  1432.  When  the  document  which  forms  the  basis  of  the 
proceedings  brought  by  the  petitioner,  should  have  the  requisites  men- 
tioned in  article  1423,  and  should  state  the  net  amount  and  the  term  for 
which  maintenance  is  due,  an  executory  action  shall  be  prosecuted, 
without  any  special  features. 

1527).  ART.  1433.  An  ordinary  action  shall  also  be  prosecuted,  with- 
out any  special  features,  when  maintenance  shall  be  demanded  without 
the  proofs  mentioned  in  the  preceding  articles  of  this  chapter,  or  when 
the  maintenance  is  of  a  voluntary  character  or  due  under  the  right  of  a 
real  action,  arising  under  a  contract  or  a  last  will. 

1519- 

CHAPTER  XVII. 

Appointment  and  removal  of  guardians. 

1528).  ART.  1434.  A  testamentary  tutor  or  curator  must  appear  be- 
fore the  Corregidor  of  the  domicile  of  the  ward  in  order  that  his  appoint- 
ment may  be  confirmed,  and  must  produce  the  testament  and  the  proof 
of  the  death  of  the  testator. 

1529).  ART.  1435.  The  Corregidor,  after  the  furnishing  of  bond, 
when  such  bond  may  be  necessary  in  accordance  with  the  substantive 
laws,  shall  issue  a  decree  of  confirmation,  in  which  he  shall  fix  the  trnu 


279 

within  which  the  guardian  is  to  prepare  the  inventory  in  due  form  of 
the  property  of  the  ward,  in  accordance  with  the  provisions  on  the  sub- 
ject contained  in  the  substantive  laws. 

464  of  the  Civil  Code. 

1530).  ART.  1436.  When  a  ward  or  minor  shall  not  have  a  testamen- 
tary tutor  or  curator,  the  persons  called  by  law  to  the  legal  tutorship  or 
curatorship,  must  appear  before  the  Corregidor  of  the  domicile  of  the 
ward  or  minor,  and  demand  the  confirmation  and  must  produce  the  evi- 
dence showing  that  they  are  the  legal  tutors  or  curators. 

1533-     457,  463  of  the  Civil  Code. 

1531).  ART.  1437.  In  the  case  of  the  preceding  article,  the  Corregidor 
shall  also  confirm  the  appointment,  and  fix  the  time  for  the  formation 
of  the  inventory. 

468  et  seq.,  of  the  Civil  Code. 

1532).  ART.  1438.  If  several  persons  should  appear  and  claim  to  be 
entitled  to  the  tutorship  or  curatorship,  to  the  exclusion  of  the  others, 
the  Corregidor,  after  having  heard  the  Municipal  "Personero,"  shall 
summarily  decide  who  is  to  exercise  the  tutorship  or  curatorship.  An 
appeal  from  this  decision  in  a  devolutive  effect  only  shall  lie;  but  this 
shall  not  be  an  obstacle  to  the  right  to  the  tutorship  or  curatorship 
being  made  the  subject  of  an  ordinary  action. 

1533).  ART.  1439.  Any  person  knowing  that  in  the  place  of  his  resi- 
dence there  is  any  person  who  should  be  under  the  protection  of  a  tutor 
or  curator  and  is  not,  may  verbally  or  in  writing  denounce  the  fact  to  the 
respective  Municipal  Personero  or  Corregidor,  in  order  that  the  appoint- 
ment of  a  tutor  or  curator  may  be  made. 

To  make  the  denunciation  referred  to  is  a  duty  incumbent  upon  the 
relatives  of  the  ward  or  minor  by  consanguinity  within  the  fourth  degree 
and  of  affinity  within  the  second  degree,  even  though  they  should  not 
be  included  among  those  called  to  the  tutorship  or  curatorship;  and 
should  they  fail  to  make  it,  they  shall  incur  a  fine  of  ten  to  one  hundred 
pesos,  which  shall  be  imposed  by  the  respective  Corregidor. 

1530.     431,  432  of  the  Civil  Code. 

1534).  ART.  1440.  The  Corregidor  to  whom  the  denunciation  is  made 
shall  direct,  after  hearing  the  Municipal  "Personero,"  that  as  soon  as 
possible  measures  be  taken  to  establish  the  truth  of  the  fact  denounced, 
and  after  such  measures  shall  have  been  taken,  he  shall  appoint  a  pro- 
visional tutor  or  curator,  and  shall  order  that  edicts  be  posted  summon- 
ing those  who  believe  themselves  to  be  entitled  to  the  guardianship  to 


280 

appear  and  enforce  their  rights  within  a  term  which  shall  be  fixed  by  the 
Corregidor  in  his  discretion,  which  term  cannot  be  under  thirty  days 
nor  exceed  ninety. 

1535).  ART.  1441.  Upon  the  expiration  of  the  term  referred  to  in  the 
preceding  article,  without  any  person  having  appeared  claiming  the 
right  to  the  tutorship  or  curatorship,  with  the  necessary  evidence,  the 
Corregidor  shall  make  the  final  appointment  of  the  tutor  or  curator, 
taking  into  consideration  the  recommendations  which  may  have  been 
made  in  favor  of  the  ward  or  minor  by  his  relatives. 

1536).  ART.  1442.  If  any  of  those  who,  in  accordance  with  the  sub- 
stantive laws,  may  petition  for  the  removal  of  a  tutor  or  curator,  should 
do  so,  he  must  present  his  petition  in  writing  to  the  Judge  of  First 
Instance  of  the  territory  in  which  the  domicile  of  the  guardian  is  situ- 
ated, and  in  such  proceedings  the  ordinary  procedure  in  an  action  of 
greater  import  shall  be  pursued. 

Subrogated  by  the  following : 

1537).  ART.  287  of  Law  105  of  1890.  When  any  of  those  who,  in 
accordance  with  the  substantive  laws,  may  petition  for  the  removal  of  a 
tutor  or  curator,  should  do  so,  he  must  present  his  petition  to  the  re- 
spective Judge  of  the  territory  in  which  the  domicile  of  the  guardian 
is  situated,  and  in  such  proceedings,  the  ordinary  procedure  in  an 
action  of  greater  or  lesser  import  shall  be  pursued,  according  to  the 
amount  of  the  tutorship  or  curatorship. 

i54i,  1542. 

1538).  ART.  1443.  Answer  having  been  made  to  a  petition  for  re- 
moval, the  Judge  shall  appoint  a  provisional  tutor  or  curator  during  the 
pendency  of  the  proceedings  for  removal,  and  shall  confirm  the  appointee 
in  his  office,  notwithstanding  any  appeal  which  may  be  taken  from  the 
decree  of  appointment,  which  can  be  granted  in  a  devolutive  effect  only. 

1539).  ART.  1444.  If  the  defendant  tutor  or  curator  should  without 
opposing  dilatory  exceptions,  fail  to  make  answer  to  the  complaint 
within  the  legal  term,  upon  its  expiration  the  appointment  prescribed 
in  the  preceding  article  shall  also  be  made. 

1540).  ART.  1445.  On  the  petition  of  the  defendant,  and  when  the 
Judge  shall  deem  it  necessary,  the  private  plaintiff  may  be  required  to 
furnish  bond  to  indemnify  the  ward  for  the  loss  and  damage  which  he 
may  incur  by  virtue  of  the  proceed'ngs  for  removal  brought  against  his 
guardian,  if  a  decision  should  be  rendered  in  favor  of  the  latter.  If  the 
bond  should  be  required  the  appointment  of  the  provisional  guardian 
hall  not  be  confirmed,  until  such  bond  shall  have  been  furnished. 

737  et  seq. 


28l 

1541).  ART.  1446.  In  these  proceedings,  the  Department  of  Public 
Prosecution  shall  always  be  heard,  even  though  they  are  prose- 
cuted at  the  instance  of  a  private  complainant. 

1542).  ART.  1447.  It  is  the  obligation  of  the  respective  Agent  of  the 
Department  of  Public  Prosecution  to  request  the  removal  of  the  guard- 
ians in  the  cases  in  which,  in  accordance  with  the  law,  they  are  remov- 
able, under  the  same  liability  which  they  would  incur  for  a  failure  to 
prosecute  criminal  offenses. 

1543).  ART.  1448.  The  official  whose  duty  it  is  to  confirm  a  tutor- 
ship or  guardianship,  is  of  competent  jurisdiction  to  resolve  all  ques- 
tions relating  thereto,  and  in  the  absence  of  any  other  procedure  specially 
established,  that  prescribed  in  articles  742  and  743,  for  incidental  issues 
in  ordinary  actions  shall  be  had  before  a  decision  is  rendered. 

CHAPTER  XVIII. 
Judicial  Interdiction. 

1544).  ART.  1449.  He  who,  in  accordance  with  the  substantive  laws, 
shall  have  the  right  to  institute  proceedings  for  interdiction,  must  file  a 
petition  in  writing  before  the  Judge  of  first  instance  of  the  territory  in 
which  the  spendthrift,  the  insane  person  or  the  deaf-mute  whose  inter- 
diction is  in  question,  resides. 

1545).  ART.  1450.  The  proceedings  for  the  interdiction  of  a  spend- 
thrift shall  be  heard  with  the  latter  in  accordance  with  the  procedure 
established  for  ordinary  suits  of  greater  import. 

1552,  1556- 

1546).  ART.  1451.  Until  a  decision  shall  be  rendered  in  the  proceed- 
ings for  interdiction,  the  Judge  may,  on  the  petition  of  the  plaintiff 
giving  consideration  to  the  statements  of  the  relatives  or  other  persons, 
and  after  hearing  the  alleged  spendthrift,  decree  the  provisional  inter- 
diction, which  decree  shall  be  rendered  after  proceedings  similar  to  an 
ordinary  incidental  issue  (articles  742  and  743),  and  may  be  appealed 
from  in  a  devolutive  effect  only. 

1547).  ART.  1452.  In  the  petition  which  may  be  interposed  for  the 
interdiction  of  an  insane  person  or  a  deaf-mute,  the  person  making  it 
shall  designate  an  expert  to  conduct  the  examination  which  will  be 
treated  of  below. 

1548,  1551. 

1548).  ART.  1453.  If  the  complainant  should  not  be  an  Agent  of  the 
Department  of  Public  Prosecution,  after  the  complaint  mentioned  in 
the  preceding  article  shall  have  been  made,  the  Judge  shall  direct  said 


282 

Agent  to  designate  another  expert  for  the  same  purpose;  but  if  the 
plaintiff  should  be  the  Department  of  Public  Prosecution,  the  appoint- 
ment of  the  second  expert  shall  be  made  by  the  Judge,  without  pre- 
judice to  the  appointment  in  a  necessary  case  of  a  third  person  to  decide 
any  disagreement,  in  accordance  with  the  provisions  of  Chapter  6, 
Title  II  of  this  Book. 

1549).  ART.  1454.  After  the  experts  shall  have  been  appointed,  and 
the  proper  oaths  administered  to  them,  the  Judge  shall  decree  the  ex- 
amination of  the  insane  persons  or  deaf-mutes,  which  examination  said 
Judge  shall  make,  together  with  the  experts,  three  times  on  three  con- 
secutive days. 

1550).  ART.  1455.  The  examination  having  been  made,  the  Judge, 
within  forty-eight  hours,  shall  decide  whether  the  interdiction  is  or  is  not 
to  be  decreed.  If  he  should  decree  it,  an  appeal  from  his  decision  shall 
lie  in  a  devolutive  effect  only. 


1551).  ART.  323  of  Law  105  of  1890.  The  provisions  of  articles  1452 
to  1455  of  the  Judicial  Code  do  not  exclude  the  taking  and  consideration 
of  such  other  evidence  as  may  conduce  to  establishing  the  state  of  in- 
sanity of  the  person  whose  interdiction  is  in  question. 

Decisions  rendered  in  proceedings  of  this  character  shall  be  submitted 
for  consultation  to  the  respective  Superior  Tribunal,  if  there  be  no  ap- 
peal. The  tribunal  may,  ex  proprio  motu,  order  such  corroboration 
which  it  may  consider  necessary. 

1552).  ART.  1456.  Immediately  after  the  institution  of  proceedings 
for  the  interdiction  of  an  insane  person  or  deaf-mute,  the  Judge  shall 
direct  the  posting  of  an  edict  summoning  those  who  believe  that  they 
have  a  right  to  intervene  in  the  proceedings. 

1553).  ART,  1457.  If  any  person  should  oppose  the  interdiction,  with- 
out prejudice  to  the  execution  of  the  decree  declaring  it,  an  ordinary 
suit  shall  be  prosecuted  with  the  opposer  as  a  party. 

1554).  ART.  1458.  Opposition  to  the  interdiction  may  be  made  by 
the  same  persons  who  under  the  substantive  laws,  have  the  right  to 
petition  therefor. 

1544- 

I555)-  ART.  1459.  For  the  rehabilitation  of  a  spendthrift,  insane 
person  or  deaf-mute,  proceedings  shall  be  had  as  prescribed  for  the  pur- 
pose of  decreeing  the  interdiction. 

vSuch  proceedings  may  be  instituted  by  the  spendthrift,  insane  prison 
or  deaf-mn  t( 

1545 


283 

1556).  ART.  1660.  The  representative  of  the  Department  of  Public 
Prosecution  shall  always  be  heard  in  these  proceedings  for  interdiction 
and  rehabilitation,  even  though  private  parties  should  have  been  the 
petitioners. 

CHAPTER  XIX. 
Judicial  intervention  in  the  administration  of  Guardians. 

1557).  ART.  1461.  When  a  guardian  shall  be  desirous  of  alienating 
or  encumbering  with  a  mortgage  or  servitude  the  real  property  of  the 
person  who  may  be  under  his  charge,  or  to  alienate  or  pledge  the  valu- 
able movables  or  such  as  have  a  special  value  outside  of  their  intrinsic 
value,  he  shall  apply  in  writing  to  the  Judge  of  first  instance  of  the 
territory  where  the  property  may  be  situated,  requesting  the  authority 
necessary  in  accordance  with  the  substantive  laws. 

1566,  1567. 

1558).  ART.  1462.  To  this  petition  the  guardian  shall  attach  his  title 
as  such,  or  the  copy  of  the  confirmation  of  his  appointment,  and  the 
titles  of  ownership  of  the  property  which  he  is  desirous  of  alienating, 
encumbering  or  pledging,  if  they  should  be  in  existence ;  and  in  the  same 
petition  he  shall  submit  evidence  of  the  profit  or  manifest  necessity 
which  may  exist  for  the  alienation  or  encumbrance. 

1561. 

1559).  ART.  1463.  The  Judge  shall  immediately  order  the  evidence 
heard,  with  the  citation  of  the  representative  of  the  Department  of 
Public  Prosecution. 

1560,  1562. 

1560).  ART.  1464.  The  witnesses  who  are  to  testify  in  such  case, 
must,  in  addition  to  having  the  qualifications  generally  necessary  in  a 
competent  witness,  be  landowners  and  persons  of  prominence  in  their 
locality.  The  representative  of  the  Department  of  Public  Prosecution 
may  challenge  them,  and  if  he  should  do  so,  the  Judge  shall  grant  a 
common  peremptory  period  of  ten  days. 

1561).  ART.  1465.  The  witnesses  must  testify  as  to  precise  and  deter- 
minate matters,  from  which  the  utility  or  manifest  necessity  which  must 
exist  in  order  that  judicial  authority  may  be  granted,  can  be  properly 
deduced. 

466,467,469,  470,471. 


284 

1562).  ART.  1466.  The  evidence  having  been  taken,  it  shall  be  re- 
ferred to  the  representative  of  the  Department  of  Public  Prosecution 
for  forty-eight  hours,  in  order  that  he  may  render  his  opinion,  after  re- 
ceiving which,  the  Judge  shall  decide  within  the  next  six  days,  whether 
he  does  or  does  not  grant  the  authority  requested. 

This  decision  may  be  appealed  from  in  both  effects. 

1563).  ART.  1467.  If  authority  should  be  granted  for  the  alienation 
of  real  property  or  a  valuable  movable,  or  a  movable  which  has  a 
special  value,  the  Judge  shall  order  in  the  same  decision,  that  the 
property  be  appraised  by  experts  appointed  in  the  form  established  in 
Chapter  VI,  Title  II  of  this  book. 

1607. 

1564).  ART.  1468.  After  the  property  has  been  appraised  the  Judge 
shall  order  the  sale  thereof  at  public  auction,  which  sale  shall  be  held  in 
accordance  with  the  terms  prescribed  in  articles  1060  to  1081  for  the 
sale  of  property  in  executory  proceedings. 

In  such  case,  and  in  all  other  cases  of  voluntary  sale  of  property  at 
public  auction,  no  bid  shall  be  admissible  which  does  not  cover  the  entire 
amount  of  the  appraisal. 

1565).  ART.  1469.  The  vendor  shall  have  the  same  obligation  as  if  he 
he  had  made  the  sale  in  an  executory  action,  and  shall  swear  that  he  has 
made  the  sale  for  himself,  or  his  principal  exhibiting  in  the  latter  case 
the  power  of  attorney  which  may  have  been  granted  him  for  the  pur- 
pose of  making  the  sale. 

1566).  ART.  1470.  If  the  purpose  of  the  judicial  authority  should  be 
the  celebration  of  a  contract  other  than  a  sale,  it  shall  be  entered  into, 
and  there  shall  be  inserted  in  the  instrument,  if  granted,  the  judicial 
decree  containing  the  said  authorization. 

1567).  ART.  1471.  Whenever,  under  the  substantive  laws,  guardians 
require  a  judicial  decree  for  the  performance  of  some  act  or  the  cele- 
bration of  any  contract  on  behalf  of  the  persons  under  guardianship, 
the  provisions  of  this  Chapter  shall  be  observed  in  so  far  as  the  act  or 
contract  the  subject  matter  of  the  authorization  shall  permit. 

CHAPTER  XX. 
Religious  foundations  (Capellanias) . 

1568).  ART.  1472.  This  article  to  and  including: 

1579).  ART.  1483,  have  been  derogated  by  article  338  of  Law  105  of 
1890,  and  subrogated  by  the  following: 

1580).  ART.  324  of  Law  105  of  1890.  For  civil  purposes,  religious 
foundations  (capellanias}  are  generally  called  the  foundations  made  for 
the  purpose  of  having  masses  said  or  other  pious  works  done  ommvtrd 
with  worship 


285 

When  the  property  or  income  subject  to  the  foundation  is  not  ceded 
to  a  religious  corporation  or  congregation,  but  to  private  individuals, 
with  the  sole  charge  of  having  masses  said  or  the  other  pious  works  done 
which  may  be  designated  in  the  foundation,  the  foundations  are  called 
laical,  and  also  mercenary  ( mer cenarias) ,  profane  (prof anas),  patronatos 
de  legos,  pious  legacies  and  memorials  of  masses  (memorias  de  misas) . 

If  the  purpose  of  the  foundation  should  be  to  provide  for  one  or  more 
persons  who  pursue  an  ecclesiastical  career,  an  income  by  reason  of 
their  office,  under  certain  conditions  laid  down  by  the  founder  and  with 
the  acceptance  or  approval  of  the  respective  ecclesiastic  Prelate,  the 
foundation  is  called  collative  (colativa) . 

1581).  ART.  325  of  Law  105  of  1890.  The  filling  of  laical  foundations 
pertains  to  the  civil  jurisdiction.  That  of  collative  foundations  and 
other  ecclesiastic  or  religious  benefices,  is  of  the  exclusive  jurisdiction 
of  the  ecclesiastical  authorities. 

1582).  ART.  326  of  Law  105  of  1890.  The  person  claiming  to  have 
the  right  to  be  declared  the  patron  or  chaplain  of  a  patronato  de  legos  or 
laical  foundation,  must  present  his  petition  to  the  Judge  of  the  Circuit 
in  which  all  or  a  greater  portion  of  the  property  subject  to  the  founda- 
tion may  be  situated,  and  in  the  event  that  this  is  unknown  or  doubtful, 
to  the  Judge  of  the  Circuit  in  which  the  foundation  was  created. 

1583).  ART.  327  of  Law  105  of  1890.  The  petitioner  must  attach  to 
his  petition  the  document  containing  the  foundation  of  the  benefice  or 
patronate,  and  evidence  that  by  the  death  of  the  last  holder  thereof  or 
for  another  cause  it  is  vacant. 

1584).  ART.  328  of  Law  105  of  1890.  The  petition  having  been  made 
in  the  manner  stated,  and  the  Judge  having  convinced  himself  of  his 
competency,  he  shall  direct  that  the  parties  be  summoned  in  the 
manner  prescribed  by  the  Judicial  Code,  for  notification  and  citations, 

1585,  212  et  seq. 

1585).  ART.  329  of  Law  105  of  1890.  The  edicts  must,  in  addi- 
tion, be  posted  in  the  District  in  which  the  property  subject  to  the 
foundation  may  be  situated. 

1586).  ART.  330  of  Law  105  of  1890.  No  ordinary  action  shall  be 
prosecuted  in  accordance  with  the  procedure  established  by  the  Judicial 
Code  for  ordinary  actions  of  greater  import,  with  the  persons  who  enter 
an  appearance  and  the  defender,  in  a  proper  case  as  parties. 

1587).  ART.  331  of  Law  105  of  1890.  A  person  interested  who  should 
have  failed  to  enter  an  appearance  within  the  term  of  the  summons, 
shall  be  permitted  to  become  a  party  to  the  suit  at  the  state  it  may  have 
readied  when  he  appears. 

218. 


286 

1588).  ART.  332  of  Law  105  of  1890.  The  same  procedure  which  is  to 
be  observed  in  filling  laical  benefices,  is  to  be  pursued  when  a  declara- 
tion is  requested  to  the  effect  that  the  right  to  enjoy  certain  property  or 
rights  pertains  to  a  person  by  virtue  of  the  clause  of  the  testament  or 
contract  which  calls  indeterminate  persons,  reserving  always  collative 
foundations  and  ecclesiastic  benefices,  which  pertain  to  the  ecclesiastic 
jurisdiction,  in  accordance  with  the  preceding  provisions. 


TITLE  XII. 

FIRST  AND  LAST  CHAPTER. 
Summary  Proceedings  in  General. 

1589).  ART.  1484.  When,  according  to  the  law,  a  matter  must  be 
decided  in  a  brief  and  summary  proceeding,  without  the  method  of 
procedure  being  established,  such  procedure  shall  be  that  established 
in  the  following  articles  of  this  Title. 

1590).  ART.  1485.  Upon  the  presentation  of  the  bill  of  complaint,  it 
shall  be  referred  to  the  defendant  for  a  period  of  three  days,  and  upon 
answer  being  made,  the  Judge,  after  citation  of  the  parties,  and  con- 
sideration only  of  the  evidence  which  may  have  been  attached  to  the 
complaint  and  the  answer,  shall  render  judgment  within  the  three  days 
next  after  the  last  citation. 

1591).  ART.  1486.  If  the  defendant  should  fail  to  make  answer  to  the 
complaint  within  the  legal  term,  the  Judge,  after  citation  of  the  parties, 
shall  render  judgment  within  three  days,  upon  the  merits  of  the  evi- 
dence presented  by  the  plaintiff,  without  prejudice  to  opposition,  which 
the  defendant  may  make  within  the  eight  days  next  after  service  of 
notice  of  the  judgment  rendered  in  default. 

1592).  ART:  1487.  If  opposition  should  be  made  within  the  term 
mentioned  in  the  foregoing  article,  evidence  shall  be  taken  in  the  pro- 
ceedings for  the  common  period  of  eight  days  which  is  not  subject  to 
extension,  upon  the  expiration  of  which  the  Judge,  after  citation  of  the 
parties  shall  render  judgment  within  the  three  days  following  the  last 
citation. 

1593).  ART.  1488.  In  any  case,  if  any  of  the  parties  should  request 
that  the  evidence  of  witnesses  be  heard  in  support  of  his  contentions, 
the  proceedings  shall  be  conducted  in  accordance  with  the  provisions 
of  the  preceding  article. 

1594).  ART.  1489.  If  the  plaintiff  should  defer  to  the  decisory  oath 
of  the  defendant,  and  the  latter  should  take  it,  a  decision  shall  be  n-ii 
dered  in  accordance  with  what  may  result  from  said  oatli 

1595).  ART.  1490.  The  judgments  rendered  in  proceedings  of  this 


287 

character  may  be  appealed  from,  but  in  a  devolutive  effect  only,  and 
the  appeal  shall  be  heard  and  decided  as  appeals  from  interlocutory 
judgments. 

784,  785- 

TITLE  XIII. 

FIRST  AND  LAST  CHAPTER. 
Privileges  of  the  Nation  in  regard  to  procedure. 

1596).  ART.  1491.  With  relation  to  procedure  in  civil  matters,  the 
Nation  enjoys  the  following  privileges : 

1 .  In  no  case  can  execution  issue  against  it.     Its  obligations  which  are 
demandable  in  an  executory  manner,  according  to  the  general  rules, 
shall  be  enforced  in  the  manner  prescribed  in  article  884. 

2.  Costs  cannot  be  adjudged  against  it.    When  by  permission  of  law 
a  private  individual  litigates  with  the  Nation,  both  forming  one  party, 
and  such  party  should  be  adjudged  to  pay  the  costs,  one-half  the  amount 
of  such  costs  only  shall  be  taxed  against  the  private  individual. 

1597- 

3.  The  representative  of   the  Nation  in  the  second   instance,  may 
plead  therein,  up  to  the  time  for  citation  for  judgment,  even  though 
no  evidence  shall  have  been  taken  in  the  cause,  such  peremptory  ex- 
ceptions which  may  not  have  been  pleaded  in  the  first  instance. 

291. 

4.  Process  must  be  served  on  the  representatives  of  the  Nation  in 
their  offices,  at  the  time  they  may  have  fixed  for  the  purpose.     Only  in 
the  event  of  their  not  being  found  in  their  offices,  or  their  failure  to 
appear  in  the  respective  Tribunal  or  Court,  within  two  days  after  the 
issue  of  the  order  or  decree  which  it  is  desired  to  serve  on  them,  and  at 
the  hour  stated,  shall  a  notification  made  by  means  of  edicts  be  legal. 

5.  The  plaintiff  cannot  enforce  against  the  Nation  the  right  of  sus- 
pension, during  the  proceedings,  of  any  industrial  operation  which  might 
prejudice  said  plaintiff. 

183  et  seq. 

6.  The  Agents  of  the  Department  of  Public  Prosecution  are  entitled 
to  double  the  term  for  reference  in  judicial  proceedings. 

And  such  other  privileges  as  result  from  the  provisions  of  this  Code. 
1597).  ART.  35  of  Law  100  of  1892.     The  Nation,  the  Departments 
and  the  Municipalities  can  never  be  adjudged  to  pay  costs,  and  judg- 


288 

merits  rendered  against  such  entities  shall  be  submitted  for  consultation, 
if  no  appeal  should  be  taken  by  a  legitimate  party. 

291,  305,  334,  35i,  352,  408,  676,  765,  886,  1596. 


TITL.E  XIV. 

FIRST  AND  LAST  CHAPTER. 
Miscellaneous  provisions. 

1598).  ART.  1492.  Judges  and  other  officials  of  the  Judiciary  who 
should  omit  any  legal  formality  in  judicial  proceedings  even  though 
such  formality  should  not  be  of  those  the  omission  of  which  is  a  cause  of 
annulment,  shall  be  fined  by  the  respective  superior  from  one  to  five 
pesos  each  time,  reserving  always  the  action  for  loss  and  damage  in 
favor  of  the  person  suffering  them. 

1599).  ART.  1493.  Whenever  an  oath  is  required  by  this  Code,  of  the 
parties,  of  the  witnesses,  experts  and  other  persons  taking  part  in  judi- 
cial proceedings,  it  shall  be  understood,  even  though  this  be  not  stated, 
that  each  may  take  it  according  to  the  form  prescribed  by  his  religious 
beliefs. 

1600).  ART.  1494.  Periods  of  time  or  terms  for  the  purposes  of  judi- 
cial procedure,  shall  be  computed  by  reckoning  the  days  at  twenty-four 
hours,  the  months  at  the  time  running  from  the  day  of  the  beginning  of 
the  term  to  the  same  day  of  the  following  month,  and  the  years  at  the 
rate  of  three  hundred  and  sixty-five  days  each.  If  the  term  should 
expire  on  a  day  of  vacation,  the  act  shall  be  executed  on  the  next 
working  day. 

67,  68,  70. 

1601.  ART.  1495.  The  term  of  distance  shall  be  computed  at  the  rate 
of  one  day  for  each  two  miriameters. 

69  of  the  Civil  Code. 

1602).  ART.  1496.  A  litigant  who  shall  be  declared  a  pauper,  is  not 
obliged  to  pay  costs. 

1603).  ART.  1497.  For  the  purposes  of  the  preceding  article,  a  litigant 
shall  be  declared  a  pauper  who  proves  that  he  does  not  receive  an  annual 
income  of  one  hundred  and  eighty  pesos. 

This  proof  shall  be  adduced  in  the  same  suit  in  which  it  is  ck-siivd  to 
secure  the  benefit.  The  declaration  <>!'  poverty  shall  IK-  made  in  ilic 
judgment  upon  the  main  issue,  in  the  suit  and  shall  not  apply  in  any 
other  suit  in  which  the  same  litigant  may  be  a  party. 


289 

1604)-  ART.  334  of  Law  105  of  1890.  The  Justices  of  the  Supreme 
Court,  those  of  the  District  Tribunals  and  the  Judges,  may  make  use  of 
compulsion  in  the  form  of  arrest  not  to  exceed  six  days,  and  successive 
fines,  from  five  to  fifty  pesos,  to  oblige  the  parties,  the  experts  and  wit- 
nesses, the  officials  subordinate  to  them,  or  any  other  persons  required 
to  act  in  the  proceedings,  or  whose  service  or  co-operation  may  be  neces- 
sary therein,  to  comply  with  the  orders  or  decrees  which  said  author- 
ities may  make  in  the  performance  of  their  functions.  Any  person 
who  is  a  resident  of  the  place  where  any  of  the  said  officials  reside,  and 
who  may  be  legally  called  upon,  must  furnish  the  assistance  required  of 
him  for  the  speedy  administration  of  justice,  to  prevent  the  perpetra- 
tion of  a  crime,  or  to  apprehend  delinquents  or  individuals  who  are  to  be 
detained  by  virtue  of  a  judicial  order. 

1605) .  ART.  337  of  Law  105  of  1890.  The  endorsements  or  references 
upon  a  document  shall  be  drawn  immediately  after  the  same,  if  possible, 
for  which  purpose  the  unwritten  portion  thereof  may  be  used,  even 
though  the  paper  be  not  of  the  proper  kind. 

1606).  ART.  26  of  Law  100  of  1892.  The  notice  referred  to  in  article 
1 960  of  the  Civil  Code,  may  be  served  through  any  of  the  Judges  of  the 
residence  of  the  debtor,  the  provisions  of  article  1961  of  the  said  Code 
being  observed. 

1607).  ART.  47  of  Law  100  of  1892.  The  sale  of  real  property  or  of 
property  having  a  special  value,  belonging  to  minors  under  the  paternal 
authority,  shall  be  effected  at  public  sale,  the  procedure  established  by 
articles  1467  et  seq.,  of  the  Judicial  Code,  being  observed. 

1608).  ART.  48  of  Law  100  of  1892.  Petitions  for  permission  to 
alienate  or  encumber  the  property  of  married  women,  in  the  cases  of 
article  1810  of  the  Civil  Code,  shall  be  subjected  to  the  procedure 
established  in  article  1461  to  1466,  inclusive,  of  the  Judicial  Code.  The 
Judge  of  competent  jurisdiction  to  take  cognizance  of  these  petitions 
and  those  made  by  guardians,  in  accordance  with  the  provisions  of  said 
chapter,  is  that  of  the  domicile  of  the  person  or  persons  whose  property 
it  is  desired  to  alienate  or  encumber. 


